    [House Report 104-469]
    [From the U.S. Government Publishing Office]

    104th Congress                                            Rept. 104-469
                            HOUSE OF REPRESENTATIVES

     2d Session                                                      Part 3
    _______________________________________________________________________

               IMMIGRATION IN THE NATIONAL INTEREST ACT OF 1995;
               TEMPORARY AGRICULTURAL WORKER AMENDMENTS OF 1996
                                    _______

     March 8, 1996.--Committed to the Committee of the Whole House on the
                  State of the Union and ordered to be printed

                                    _______

    Mr. Roberts, from the Committee on Agriculture, submitted the following

                                  R E P O R T

                                 together with

                         MINORITY AND ADDITIONAL VIEWS

                            [To accompany H.R. 2202]

      The Committee on Agriculture, to whom was referred the bill
    (H.R. 2202) to amend the Immigration and Nationality Act to
    improve deterrence of illegal immigration to the United States
    by increasing border patrol and investigative personnel, by
    increasing penalties for alien smuggling and for document
    fraud, by reforming exclusion and deportation law and
    procedures, by improving the verification system for
    eligibility for employment, and through other measures, to
    reform the legal immigration system and facilitate legal
    entries into the United States, and for other purposes, having
    considered the same, report favorably thereon with amendments
    and recommend that the bill as amended do pass.
      The amendments (stated in terms of the page and line numbers
    of the introduced bill) are as follows:
      On page 364, after line 13, add the following (and conform
    the table of contents accordingly):

                      Subtitle A--Miscellaneous Provisions

      Add at the end the following (and conform the table of
    contents accordingly):

                   Subtitle B--Guest Worker Visitation Program

    SEC. 821. SHORT TITLE.

      This subtitle may be cited as the ``Temporary Agricultural
    Worker Amendments of 1996''.

    SEC. 822. NEW NONIMMIGRANT H-2B CATEGORY FOR TEMPORARY AGRICULTURAL
                        WORKERS.

      (a) Establishment of New Classification.--Section
    101(a)(15)(H)(ii) (8 U.S.C. 1101(a)(15)(H)(ii)) is amended by
    striking ``or (b)'' and inserting ``(b) having a residence in a
    foreign country which he has no intention of abandoning who is
    coming temporarily to the United States pursuant to section
    218A to perform such agricultural labor or services of a
    temporary or seasonal nature, or (c)''.
      (b) No Family Members Permitted.--Section 101(a)(15)(H) (8
    U.S.C. 1101(a)(15)(H)) is amended by striking ``specified in
    this paragraph'' and inserting ``specified in this subparagraph
    (other than in clause (ii)(b))''.
      (c) Disqualification if Convicted of Ownership or Operation
    of a Motor Vehicle in United States Without Insurance.--Section
    214 (8 U.S.C. 1184) is amended by adding at the end the
    following:
      ``(l)(1) An alien may not be admitted (or provided status) as
    a temporary worker under section 101(a)(15)(H)(ii)(b) if the
    alien (after the date of the enactment of this subsection) has
    been convicted of owning (or knowingly operating) a motor
    vehicle in the United States without having liability insurance
    that meets applicable insurance requirements of the State in
    which the alien is employed or in which the vehicle is
    registered.
      ``(2) An alien who is admitted or provided status as such a
    worker who is so convicted shall be considered, on and after
    the date of the conviction and for purposes of section
    241(a)(1)(C), to have failed to comply with a condition for the
    maintenance of status under section 101(a)(15)(H)(ii)(b).''
      (d) Conforming Redesignation.--Subsections (c)(5)(A) and
    (g)(1)(B) of section 214 (8 U.S.C. 1184) are each amended by
    striking ``101(a)(15)(H)(ii)(b)'' and inserting
    ``101(a)(15)(H)(ii)(c)''.

    SEC. 823. ALTERATIVE AGRICULTURAL TEMPORARY WORKER PROCESS USING
                        ATTESTATIONS.

      (a) In General.--The Immigration and Nationality Act is
    amended by inserting after section 218 the following:

              ``alternative agricultural temporary worker program

      ``Sec. 218A. (a) Condition for the Employment of H-2B
    Aliens.--
              ``(1) In general.--No alien may be admitted or
            provided status as an H-2B alien (as defined in
            subsection (n)(4)) unless--
                      ``(A) the employment of the alien is covered
                    by a currently valid labor condition
                    attestation which--
                              ``(i) is filed by the employer, or by
                            an association on behalf of the
                            employer, for the occupation in which
                            the alien will be employed;
                              ``(ii) has been accepted by the
                            qualified State employment security
                            agency having jurisdiction over the
                            area of intended employment; and
                              ``(iii) states each of the items
                            described in paragraph (2) and includes
                            information identifying the employer or
                            association and agricultural job
                            opportunities involved; and
                      ``(B) the employer is not disqualified from
                    employing H-2B aliens pursuant to subsection
                    (g).
              ``(2) Contents of labor condition attestation.--Each
            labor condition attestation filed by or on behalf of,
            an employer shall include the following:
                      ``(A) Wage rate.--The employer will pay H-2B
                    aliens and all other workers in the occupation
                    not less than the prevailing wage for similarly
                    employed workers in the area of employment, and
                    not less than the applicable Federal, State or
                    local statutory minimum wage.
                      ``(B) Working conditions.--The employment of
                    H-2B aliens will not adversely affect the
                    working conditions with respect to housing and
                    transportation of similarly employed workers in
                    the area of employment.
                      ``(C) Limitation on employment.--An H-2B
                    alien will not be employed in any job
                    opportunity which is not temporary or seasonal,
                    and will not be employed by the employer in any
                    job opportunity for more than 10 months in any
                    12-consecutive-month period.
                      ``(D) No labor dispute.--No H-2B alien will
                    be employed in any job opportunity which is
                    vacant because its former occupant is involved
                    in a strike, lockout or work stoppage in the
                    course of a labor dispute in the occupation at
                    the place of employment.
                      ``(E) Notice.--The employer, at the time of
                    filing the attestation, has provided notice of
                    the attestation to workers employed in the
                    occupation in which H-2B aliens will be
                    employed.
                       ``(F) Job orders.--The employer will file
                    one or more job orders for the occupation (or
                    occupations) covered by the attestation with
                    the qualified State employment security agency
                    no later than the day on which the employer
                    first employs any H-2B aliens in the
                    occupation.
                      ``(G) Preference to domestic workers.--The
                    employer will give preference to able, willing
                    and qualified United States workers who apply
                    to the employer and are available at the time
                    and place needed, for the first 25 days after
                    the filing of the job order in an occupation or
                    until 5 days before the date employment of
                    workers in the occupation begins, whichever
                    occurs later.
              ``(3) Establishment as pilot program; restriction of
            admissions to pilot program period.--
                      ``(A) In general.--The program under this
                    section is deemed to be a pilot program and no
                    alien may be admitted or provided status as an
                    H-2B alien under this section except during the
                    pilot program period specified in subparagraph
                    (B).
                      ``(B) Pilot program period.--
                              ``(i) In general.--Subject to clause
                            (ii), the pilot program period under
                            this subparagraph is the period (ending
                            on October 1, 1999) during which the
                            employment eligibility verification
                            system is in effect under section
                            274A(b)(7) (as amended by the
                            Immigration in the National Interest
                            Act of 1995).
                              ``(ii) Consideration of extension.--
                            If Congress extends such verification
                            system, Congress shall also extend the
                            pilot program period under this
                            subparagraph for the same period of
                            time.
                      ``(C) Annual reports.--The Comptroller
                    General shall submit to Congress annual reports
                    on the operation of the pilot program under
                    this section during the pilot program period.
                    Such reports shall include an assessment of the
                    program and of the need for foreign workers to
                    perform temporary agricultural employment in
                    the United States.
              ``(4) Limitations on number of visas.--
                      ``(A) In general.--In no case may the number
                    of aliens who are admitted or provided status
                    as an H-2B alien in a fiscal year exceed the
                    numerical limitation specified under
                    subparagraph (B) for that fiscal year.
                      ``(B) Numerical limitation.--The numerical
                    limitation specified in this subparagraph for--
                              ``(i) the first fiscal year in which
                            this section is applied is 250,000; and
                              ``(ii) any subsequent fiscal year is
                            the numerical limitation specified in
                            this subparagraph for the previous
                            fiscal year decreased by 25,000.
      ``(b) Filing a Labor Condition Attestation.--
              ``(1) Filing by employers.--Any employer in the
            United States is eligible to file a labor condition
            attestation.
              ``(2) Filing by associations on behalf of employer
            members.--An agricultural association may file a labor
            condition attestation as an agent on behalf of its
            members. Such an attestation filed by an agricultural
            association acting as an agent for its members, when
            accepted, shall apply to those employer members of the
            association that the association certifies to the
            qualified State employment security agency are members
            of the association and have agreed in writing to comply
            with the requirements of this section.
              ``(3) Period of validity.--A labor condition
            attestation is valid from the date on which it is
            accepted by the qualified State employment security
            agency for the period of time requested by the
            employer, but not to exceed 12 months.
              ``(4) Where to file.--A labor condition attestation
            shall be filed with such agency having jurisdiction
            over the area of intended employment of the workers
            covered by the attestation. If an employer, or the
            members of an association of employers, will be
            employing workers in an area or areas covered by more
            than one such agency, the attestation shall be filed
            with each such agency having jurisdiction over an area
            where the workers will be employed.
              ``(5) Deadline for filing.--An employer may file a
            labor condition attestation at any time up to 12 months
            prior to the date of the employer's anticipated need
            for workers in the occupation (or occupations) covered
            by the attestation.
              ``(6) Filing for multiple occupations.--A labor
            condition attestation may be filed for one or more
            occupations and cover one or more periods of
            employment.
              ``(7) Maintaining required documentation.--
                      ``(A) By employers.--Each employer covered by
                    an accepted labor condition attestation must
                    maintain a file of the documentation required
                    in subsection (c) for each occupation included
                    in an accepted attestation covering the
                    employer. The documentation shall be retained
                    for a period of one year following the
                    expiration of an accepted attestation. The
                    employer shall make the documentation available
                    to representatives of the Secretary during
                    normal business hours.
                      ``(B) By associations.--In complying with
                    subparagraph (A), documentation maintained by
                    an association filing a labor condition
                    attestation on behalf of an employer shall be
                    deemed to be maintained by the employer.
              ``(8) Withdrawal.--
                      ``(A) Compliance with attestation
                    obligations.--An employer covered by an
                    accepted labor condition attestation for an
                    occupation shall comply with the terms and
                    conditions of the attestation from the date the
                    attestation is accepted and continuing
                    throughout the period any persons are employed
                    in an occupation covered by such an accepted
                    attestation, whether or not H-2B aliens are
                    employed in the occupation, unless the
                    attestation is withdrawn.
                      ``(B) Termination of obligations.--An
                    employer may withdraw a labor condition
                    attestation in total, or with respect to a
                    particular occupation covered by the
                    attestation. An association may withdraw such
                    an attestation with respect to one or more of
                    its members. To withdraw an attestation the
                    employer or association must notify in writing
                    the qualified State employment security agency
                    office with which the attestation was filed of
                    the withdrawal of the attestation. An employer
                    who withdraws an attestation, or on whose
                    behalf an attestation is withdrawn by an
                    association, is relieved of the obligations
                    undertaken in the attestation with respect to
                    the occupation (or occupations) with respect to
                    which the attestation was withdrawn, upon
                    acknowledgement by the appropriate qualified
                    State employment security agency of receipt of
                    the withdrawal notice. An attestation may not
                    be withdrawn with respect to any occupation
                    while any H-2B aliens covered by that
                    attestation are employed in the occupation.
                      ``(C) Obligations under other statutes.--Any
                    obligation incurred by the employer under any
                    other law or regulation as a result of
                    recruitment of United States workers under an
                    offer of terms and conditions of employment
                    required by the H-2B program is unaffected by
                    withdrawal of a labor condition attestation.
      ``(c) Employer Responsibilities and Requirements For
    Employing H-2B Nonimmigrants.--
              ``(1) Requirement to pay the prevailing wage.--
                      ``(A) Effect of the attestation.--Employers
                    shall pay each worker in an occupation covered
                    by an accepted labor condition attestation at
                    least the prevailing wage in the occupation in
                    the area of intended employment. The preceding
                    sentence does not require employers to pay all
                    workers in the occupation the same wage. The
                    employer may, in the sole discretion of the
                    employer, maintain pay differentials based on
                    experience, tenure with the employer, skill, or
                    any other work-related factor, if the
                    differential is not based on a criterion for
                    which discrimination is prohibited by the law
                    and all workers in the covered occupation
                    receive at least the prevailing wage.
                      ``(B) Payment of qualified state employment
                    security agency determined wage sufficient.--
                    The employer may request and obtain a
                    prevailing wage determination from the
                    qualified State employment security agency. If
                    the employer requests such a determination, and
                    pays the wage determined, such payment shall be
                    considered sufficient to meet the requirement
                    of this paragraph if the H-2B workers--
                              ``(i) are employed in the occupation
                            for which the employer possesses an
                            accepted labor condition attestation,
                            and for which the employer or
                            association possesses a prevailing wage
                            determination by the qualified State
                            employment security agency, and
                              ``(ii) are being paid at least the
                            prevailing wage so determined.
                      ``(C) Reliance on wage survey.--In lieu of
                    the procedures of subparagraph (B), an employer
                    may rely on other information, such as an
                    employer generated prevailing wage survey and
                    determination, which meets criteria specified
                    by the Secretary by regulation. In the event of
                    a complaint that the employer has failed to pay
                    the required wage, the Secretary shall
                    investigate to determine if the information
                    upon which the employer relied complied with
                    the criteria for prevailing wage
                    determinations.
                      ``(D) Alternate methods of payment
                    permitted.--
                              ``(i) In general.--A prevailing wage
                            may be expressed as an hourly wage, a
                            piece rate, a task rate (described in
                            clause (ii)), or other incentive pay
                            system, including a group rate
                            (described in clause (iii)). The
                            requirement to pay at least the
                            prevailing wage in the occupation and
                            area of intended employment does not
                            require an employer to pay by the
                            method of pay in which the prevailing
                            rate is expressed. However, if the
                            employer adopts a method of pay other
                            than the prevailing rate, the burden of
                            proof is on the employer to demonstrate
                            that the employer's method of pay is
                            designed to produce earnings equivalent
                            to the earnings that would result from
                            payment of the prevailing rate.
                              ``(ii) Task rate.--For purposes of
                            this subparagraph, a task rate is an
                            incentive payment based on a unit of
                            work performed such that the incentive
                            rate varies with the level of effort
                            required to perform individual units of
                            work.
                              ``(iii) Group rate.--For purposes of
                            this subparagraph, a group rate is an
                            incentive payment system in which the
                            payment is shared among a group of
                            workers working together to perform the
                            task.
                      ``(E) Required documentation.--The employer
                    or association shall document compliance with
                    this paragraph by retaining on file the
                    employer or association's request for a
                    determination by a qualified State employment
                    security agency and the prevailing wage
                    determination received from such agency or
                    other information upon which the employer or
                    association relied to assure compliance with
                    the prevailing wage requirement.
              ``(2) Requirement to provide housing and
            transportation.--
                      ``(A) Effect of the attestation.--The
                    employment of H-2B aliens shall not adversely
                    affect the working conditions of United States
                    workers similarly employed in the area of
                    intended employment. The employer's obligation
                    not to adversely affect working conditions
                    shall continue for the duration of the period
                    of employment by the employer of any H-2B
                    aliens in the occupation and area of intended
                    employment. An employer will be deemed to be in
                    compliance with this attestation if the
                    employer offers at least the benefits required
                    by subparagraphs (B) through (D). The previous
                    sentence does not require an employer to offer
                    more than such benefits.
                      ``(B) Housing required.--
                              ``(i) Housing offer.--The employer
                            must offer to H-2B aliens and United
                            States workers recruited from beyond
                            normal recruiting distance housing, or
                            a housing allowance, if it is
                            prevailing practice in the occupation
                            and area of intended employment to
                            offer housing or a housing allowance to
                            workers who are recruited from beyond
                            normal commuting distance.
                              ``(ii) Housing standards.--If the
                            employer offers housing to such
                            workers, the housing shall meet (at the
                            option of the employer) applicable
                            Federal farm labor housing standards or
                            applicable local or State standards for
                            rental, public accommodation, or other
                            substantially similar class of
                            habitation.
                              ``(iii) Charges for housing.--An
                            employer who offers housing to such
                            workers may charge an amount equal to
                            the fair market value (but not greater
                            than the employer's actual cost) for
                            utilities and maintenance, or such
                            lesser amount as permitted by law.
                              ``(iv) Housing allowance as
                            alternative.--In lieu of offering
                            housing to such workers, at the
                            employer's sole discretion on an
                            individual basis, the employer may
                            provide a reasonable housing allowance.
                            An employer who offers a housing
                            allowance to such a worker under this
                            subparagraph shall not be deemed to be
                            a housing provider under section 203 of
                            the Migrant and Seasonal Agricultural
                            Worker Protection Act (29 U.S.C. 1823)
                            merely by virtue of providing such
                            housing allowance.
                              ``(v) Security deposit.--The
                            requirement, if any, to offer housing
                            to such a worker under this
                            subparagraph shall not preclude an
                            employer from requiring a reasonable
                            deposit to protect against gross
                            negligence or willful destruction of
                            property, as a condition for providing
                            such housing.
                              ``(vi) Damages.--An employer who
                            offers housing to such a worker shall
                            not be precluded from requiring a
                            worker found to have been responsible
                            for damage to such housing which is not
                            the result of normal wear and tear
                            related to habitation to reimburse the
                            employer for the reasonable cost of
                            repair of such damage.
                      ``(C) Transportation.--If the employer
                    provides transportation arrangements or
                    assistance to H-2B aliens, the employer must
                    offer to provide the same transportation
                    arrangements or assistance (generally
                    comparable in expense and scope) for other
                    individuals employed by the employer in the
                    occupation at the place of employment who were
                    recruited from beyond normal commuting
                    distance.
                      ``(D) Workers' compensation.--If the
                    employment covered by a labor condition
                    attestation is not covered by the State
                    workers' compensation law, the employer must
                    provide, at no cost to the worker, insurance
                    covering injury and disease arising out of and
                    in the course of the workers' employment which
                    will provide benefits at least equal to those
                    provided under the State workers' compensation
                    law for comparable employment.
                      ``(E) Required documentation.--
                              ``(i) Housing and transportation.--No
                            specific documentation is required to
                            be maintained to evidence compliance
                            with the requirements of subparagraphs
                            (B) and (C). In the event of a
                            complaint alleging a failure to comply
                            with such a requirement, the burden of
                            proof shall be on the employer to show
                            that the employer offered the required
                            benefit to the complainant, or that the
                            employer was not required by the terms
                            of this paragraph to offer such benefit
                            to the complainant.
                              ``(ii) Workers' compensation.--The
                            employer shall maintain copies of
                            certificates of insurance evidencing
                            compliance with subparagraph (D)
                            throughout the period of validity of
                            the labor condition attestation.
              ``(3) Requirement to employ aliens in temporary or
            seasonal agricultural job opportunities.--
                      ``(A) Limitations.--
                              ``(i) In general.--The employer may
                            employ H-2B aliens only in agricultural
                            employment which is temporary or
                            seasonal.
                              ``(ii) Seasonal basis.--For purposes
                            of this section, labor is performed on
                            a seasonal basis where, ordinarily, the
                            employment pertains to or is of the
                            kind exclusively performed at certain
                            seasons or periods of the year and
                            which, from its nature, may not be
                            continuous or carried on throughout the
                            year.
                              ``(iii) Temporary basis.--For
                            purposes of this section, a worker is
                            employed on a temporary basis where the
                            employment is intended not to exceed 10
                            months.
                      ``(B) Required documentation.--No specific
                    documentation is required to demonstrate
                    compliance with the requirement of subparagraph
                    (A). In the event of a complaint, the burden of
                    proof shall fall on the employer to show that
                    the employment meets such requirement.
              ``(4) Requirement not to employ aliens in job
            opportunities vacant because of a labor dispute.--
                      ``(A) In general.--No H-2B alien may be
                    employed in any job opportunity which is vacant
                    because its former occupant is involved in a
                    strike, lockout, or work stoppage in the course
                    of a labor dispute in the occupation at the
                    place of employment.
                      ``(B) Required documentation.--No specific
                    documentation is required to demonstrate
                    compliance with the requirement of subparagraph
                    (A). In the event of a complaint, the burden of
                    proof shall fall on the employer to show that
                    the job opportunity in which the H-2B alien was
                    employed was not vacant because the former
                    occupant was on strike, locked out, or
                    participating in a work stoppage in the course
                    of a labor dispute in the occupation at the
                    place of employment.
              ``(5) Notice of filing of attestation and supporting
            documentation.--
                      ``(A) In general.--The employer shall--
                              ``(i) provide notice of the filing of
                            a labor condition attestation to the
                            appropriate certified bargaining agent
                            (if any) which represents workers of
                            the employer in the occupation (or
                            occupations) at the place of employment
                            covered by the attestation; or
                              ``(ii) in the case where no
                            appropriate bargaining agent exists,
                            post notice of the filing of such an
                            attestation in at least two conspicuous
                            locations where applications for
                            employment are accepted.
                      ``(B) Period for posting.--The requirement
                    for a posting under subparagraph (A)(ii) begins
                    on the day the attestation is filed, and
                    continues through the period during which the
                    employer's job order is required to remain
                    active pursuant to paragraph (6)(A).
                      ``(C) Required documentation.--The employer
                    shall maintain a copy of the notice provided to
                    the bargaining agent (if any), together with
                    evidence that the notice was provided (such as
                    a signed receipt of evidence of attempt to send
                    the notice by certified or registered mail). In
                    the case where no appropriate certified
                    bargaining agent exists, the employer shall
                    retain a copy of the posted notice, together
                    with information as to the dates and locations
                    where the notice was displayed.
              ``(6) Requirement to file a job order.--
                      ``(A) Effect of the attestation.--The
                    employer, or an association acting as agent for
                    its members, shall file the information
                    necessary to complete a local job order for
                    each occupation covered by an accepted labor
                    condition attestation with the appropriate
                    local office of the qualified State employment
                    security agency having jurisdiction over the
                    area of intended employment, or with the State
                    office of such an agency if workers will be
                    employed in an area within the jurisdiction of
                    more than one local office of such an agency.
                    The job orders shall remain on file for 25
                    calendar days or until 5 calendar days before
                    the anticipated date of need for workers in the
                    occupation covered by the job order, whichever
                    occurs later. The job order shall provide at
                    least the minimum terms and conditions of
                    employment required for participation in the H-
                    2B program.
                      ``(B) Deadline for filing.--A job order shall
                    be filed under subparagraph (A) no later than
                    the date on which the employer files a petition
                    with the Attorney General for admission or
                    extension of stay for aliens to be employed in
                    the occupation for which the order is filed.
                      ``(C) Required documentation.--The office of
                    the qualified State employment security agency
                    which the employer or association provides with
                    information necessary to file a local job order
                    shall provide the employer with evidence that
                    the information was provided in a timely manner
                    as required by this paragraph, and the employer
                    or association shall retain such evidence for
                    each occupation in which H-2B aliens are
                    employed.
              ``(7) Requirement to give preference to qualified
            united states workers.--
                      ``(A) Filing 30 days or more before date of
                    need.--If a job order is filed 30 days or more
                    before the anticipated date of need for workers
                    in an occupation covered by a labor condition
                    attestation and for which the job order has
                    been filed, the employer shall offer to employ
                    able, willing, and qualified United States
                    workers who apply to the employer and who will
                    be available at the time and place needed for
                    the job opportunities covered by the
                    attestation until 5 calendar days before the
                    anticipated date of need for workers in the
                    occupation, or until the employer's job
                    opportunities in the occupation are filled with
                    qualified United States workers, if that occurs
                    more than 5 days before the anticipated date of
                    need for workers in the occupation.
                      ``(B) Filling fewer than 30 days before date
                    of need.--If a job order is filed fewer than 30
                    days before the anticipated date of need for
                    workers in an occupation covered by such an
                    attestation and for which a job order has been
                    filed, the employer shall offer to employ able,
                    willing, and qualified United States workers
                    who are or will be available at the time and
                    place needed during the first 25 days after the
                    job order is filed or until the employer's job
                    opportunities in the occupation are filled with
                    United States workers, regardless of whether
                    any of the job opportunities may already be
                    occupied by H-2B aliens.
                      ``(C) Filing vacancies.--An employer may fill
                    a job opportunity in an occupation covered by
                    an accepted attestation which remains or
                    becomes vacant after expiration of the required
                    preference period specified in subparagraph (A)
                    or (B) of paragraph (6) without regard to such
                    preference.
                      ``(D) Job-related requirements.--No employer
                    shall be required to initially employ a worker
                    who fails to meet lawful job-related employment
                    criteria, nor to continue the employment of a
                    worker who fails to meet lawful job-related
                    standards of conduct and performance, including
                    failure to meet minimum productivity standards
                    after a 3-day break-in period.
                      ``(E) Required documentation.--No specific
                    documentation is required to demonstrate
                    compliance with the requirements of this
                    paragraph. In the event of a complaint, the
                    burden of proof shall be on the complainant to
                    show that the complainant applied for the job
                    and was available at the time and place needed.
                    If the complainant makes such a showing, the
                    burden of proof shall be on the employer to
                    show that the complainant was not qualified or
                    that the preference period had expired.
              ``(8) Requirements of notice of certain breaks in
            employment.--
                      ``(A) In general.--The employer (or an
                    association in relation to an H-2B alien) shall
                    notify the Service within 7 days if an H-2B
                    alien prematurely abandons the alien's
                    employment.
                      ``(B) Out-of-status.--An H-2B alien who
                    abandons the alien's employment shall be
                    considered to have failed to maintain
                    nonimmigrant status as an alien described in
                    section 101(a)(15)(H)(ii)(b) and shall leave
                    the United States or be subject to deportation
                    under section 241(a)(1)(C)(i).
       ``(d) Acceptance By Qualified State Employment Security
    Agency.--The qualified State employment security agency shall
    review labor condition attestations submitted by employers or
    associations only for completeness and obvious inaccuracies.
    Unless such an agency finds that the application is incomplete
    or obviously inaccurate, the agency shall accept the
    attestation within 7 days of the date of filing of the
    attestation, and return a copy to the applicant marked
    `accepted'.
      ``(e) Public Registry.--The Secretary shall maintain a
    registry of all accepted labor condition attestations and make
    such registry available for public inspection.
      ``(f) Responsibilities of the Qualified State Employment
    Security Agencies.--
              ``(1) Dissemination of labor market information.--The
            Secretary shall direct qualified State employment
            security agencies to disseminate nonemployer-specific
            information about potential labor needs based on
            accepted attestations filed by employers. Such
            dissemination shall be separate from the clearance of
            job orders through the Interstate and Intrastate
            Clearance Systems, and shall create no obligations for
            employers except as provided in this section.
              ``(2) Referral of workers on qualified state
            employment security agency job orders.--Such agencies
            holding job orders filed by employers covered by
            approved labor condition attestations shall be
            authorized to refer any able, willing, and qualified
            eligible job applicant who will be available at the
            time and place needed and who is authorized to work in
            the United States, including H-2B aliens who are
            seeking additional work in the United States and whose
            eligibility to remain in the United States pursuant to
            subsection (h) has not expired, on job orders filed by
            holders of accepted attestations.
      ``(g) Enforcement and Penalties.--
              ``(1) Enforcement authority.--
                      ``(A) Investigation of complaints.--The
                    Secretary shall establish a process for the
                    receipt, investigation, and disposition of
                    complaints respecting an employer's failure to
                    meet a condition specified in subsection (a) or
                    an employer's misrepresentation of material
                    facts in such an application. Complaints may be
                    filed by any aggrieved person or organizations
                    (including bargaining representatives). No
                    investigation or hearing shall be conducted on
                    a complaint concerning such a failure or
                    misrepresentation unless the complaint was
                    filed not later than 12 months after the date
                    of the failure or misrepresentation,
                    respectively. The Secretary shall conduct an
                    investigation under this subparagraph if there
                    is reasonable cause to believe that such a
                    failure or misrepresentation has occurred.
                      ``(B) Written notice of findings and
                    opportunity for appeal.--After an investigation
                    has been conducted, the Secretary shall issue a
                    written determination as to whether or not any
                    violation described in paragraph (2) has been
                    committed. The Secretary's determination shall
                    be served on the complainant and the employer,
                    and shall provide an opportunity for an appeal
                    of the Secretary's decision to an
                    administrative law judge, who may conduct a de
                    novo hearing.
              ``(2) Remedies.--
                      ``(A) Back wages.--Upon a final determination
                    that the employer has failed to pay wages as
                    required under this section, the Secretary may
                    assess payment of back wages due to any United
                    States worker or H-2B alien employed by the
                    employer in the specific employment in
                    question. The back wages shall be equal to the
                    difference between the amount that should have
                    been paid and the amount that actually was paid
                    to such worker.
                      ``(B) Failure to pay wages.--Upon a final
                    determination that the employer has failed to
                    pay the wages required under this section, the
                    Secretary may assess a civil money penalty up
                    to $1,000 for each failure, and may recommend
                    to the Attorney General the disqualification of
                    the employer from the employment of H-2B aliens
                    for a period of time determined by the
                    Secretary not to exceed 1 year.
                      ``(C) Other violations.--If the Secretary, as
                    a result of an investigation pursuant to a
                    complaint, determines that an employer covered
                    by an accepted labor condition attestation
                    has--
                              ``(i) filed an attestation which
                            misrepresents a material fact; or
                              ``(ii) failed to meet a condition
                            specified in subsection (a),
                    the Secretary may assess a civil money penalty
                    not to exceed $1,000 for each violation. In
                    determining the amount of civil money penalty
                    to be assessed, the Secretary shall consider
                    the seriousness of the violation, the good
                    faith of the employer, the size of the business
                    of the employer being charged, the history of
                    previous violations by the employer, whether
                    the employer obtained a financial gain from the
                    violation, whether the violation was willful,
                    and other relevant factors.
                      ``(D) Program disqualification.--
                              ``(i) 3-years for second violation.--
                            Upon a second final determination that
                            an employer has failed to pay the wages
                            required under this section, the
                            Secretary shall report such
                            determination to the Attorney General
                            and the Attorney General shall
                            disqualify the employer from the
                            employment of H-2B aliens for a period
                            of 3 years.
                              ``(ii) Permanent for third
                            violation.--Upon a third final
                            determination that an employer has
                            failed to pay the wages required under
                            this section, the Secretary shall
                            report such determination to the
                            Attorney General and the Attorney
                            General shall disqualify the employer
                            from any subsequent employment of H-2B
                            aliens.
              ``(3) Role of associations.--
                      ``(A) Violation by a member of an
                    association.--An employer on whose behalf a
                    labor condition attestation is filed by an
                    association acting as its agent is fully
                    responsible for such attestation, and for
                    complying with the terms and conditions of this
                    section, as though the employer had filed the
                    attestation itself. If such an employer is
                    determined to have violated a requirement of
                    this section, the penalty for such violation
                    shall be assessed against the employer who
                    committed the violation and not against the
                    association or other members of the
                    association.
                      ``(B) Violation by an association acting as
                    an employer.--If an association filing a labor
                    condition attestation on its own behalf as an
                    employer is determined to have committed a
                    violation under this subsection which results
                    in disqualification from the program under
                    paragraph (2)(D), no individual member of such
                    association may be the beneficiary of the
                    services of an H-2B alien in an occupation in
                    which such alien was employed by the
                    association during the period such
                    disqualification is in effect, unless such
                    member files a labor condition attestation as
                    an individual employer or such an attestation
                    is filed on the employer's behalf by an
                    association with which the employer has an
                    agreement that the employer will comply with
                    the requirements of this section.
      ``(h) Procedure for Admission or Extension of H-2B Aliens.--
              ``(1) Aliens who are outside the united states.--
                      ``(A) Petitioning for admission.--An employer
                    or an association acting as agent for its
                    members who seeks the admission into the United
                    States of H-2B aliens may file a petition with
                    the District Director of the Service having
                    jurisdiction over the location where the aliens
                    will be employed. The petition shall be
                    accompanied by an accepted and currently valid
                    labor condition attestation covering the
                    petitioner. The petition may be for named or
                    unnamed individual or multiple beneficiaries.
                      ``(B) Expedited adjudication by district
                    director.--If an employer's petition for
                    admission of H-2B aliens is correctly filled
                    out, and the employer is not ineligible to
                    employ H-2B aliens, the District Director (or
                    the Director's designee) shall approve the
                    petition within 3 working days of receipt of
                    the petition and accepted labor condition
                    attestation and immediately (by fax, cable, or
                    other means assuring expedited delivery)
                    transmit a copy of the approved petition to the
                    petitioner and to the appropriate immigration
                    officer at the port of entry or United States
                    consulate (as the case may be) where the
                    petitioner has indicated that the alien
                    beneficiary (or beneficiaries) will apply for a
                    visa or admission to the United States.
                      ``(C) Unnamed beneficiaries selected by
                    petitioner.--The petitioning employer or
                    association or its representative shall approve
                    the issuance of visas to beneficiaries who are
                    unnamed on a petition for admission granted to
                    the employer or association.
                      ``(D) Criteria for admissibility.--
                              ``(i) In general.--An alien shall be
                            admissible under this section if the
                            alien is otherwise admissible under
                            this Act and the alien is not debarred
                            pursuant to the provisions of clause
                            (ii).
                              ``(ii) Disqualification.--An alien
                            shall be debarred from admission or
                            being provided status as an H-2B alien
                            under this section if the alien has, at
                            any time--
                                      ``(I) violated a material
                                    provision of this section,
                                    including the requirement to
                                    promptly depart the United
                                    States when the alien's
                                    authorized period of admission
                                    under this section has expired;
                                    or
                                       ``(II) has otherwise
                                    violated a term or condition of
                                    admission to the United States
                                    as a nonimmigrant, including
                                    overstaying the period of
                                    authorized admission as such a
                                    nonimmigrant.
                      ``(E) Period of admission.--The alien shall
                    be admitted for the period requested by the
                    petitioner not to exceed 10 months, or the
                    remaining validity period of the petitioner's
                    approved labor condition attestation, whichever
                    is shorter, plus an additional period of 14
                    days, during which the alien shall seek
                    authorized employment in the United States.
                    During the 14-day period following the
                    expiration of the alien's work authorization,
                    the alien is not authorized to be employed
                    unless the original petitioner or a subsequent
                    petitioner has filed an extension of stay on
                    behalf of the alien.
                      ``(F) Issuance of identification and
                    employment eligibility document.--
                              ``(i) In general.--The Attorney
                            General shall cause to be issued to
                            each H-2B alien a card in a form which
                            is resistant to counterfeiting and
                            tampering for the purpose of providing
                            proof of identity and employment
                            eligibility under section 274A.
                              ``(ii) Design of card.--Each card
                            issued pursuant to clause (i) shall be
                            designed in such a manner and contain a
                            photograph and other identifying
                            information (such as date of birth,
                            sex, and distinguishing marks) that
                            would allow an employer to determine
                            with reasonable certainty that the
                            bearer is not claiming the identity of
                            another individual, and shall--
                                      ``(I) contain a fingerprint
                                    or other biometric identifying
                                    data (or both);
                                      ``(II) specify the date of
                                    the aliens authorization as an
                                    H-2B alien;
                                      ``(III) specify the
                                    expiration date of the alien's
                                    work authorization; and
                                      ``(IV) specify the alien's
                                    admission number or alien file
                                    number.
              ``(2) Extension of stay.--
                      ``(A) Application for extension of stay.--If
                    a petitioner seeks to employ an H-2B alien
                    already in the United States, the petitioner
                    shall file an application for an extension of
                    stay. The application for extension of stay
                    shall be accompanied by a currently valid labor
                    condition attestation.
                      ``(B) Limitation on filing an application for
                    extension of stay.--An application may not be
                    filed for an extension of an alien's stay for a
                    period of more than 10 months, or later than a
                    date which is 2 years from the date of the
                    alien's last admission to the United States as
                    a H-2B alien, whichever occurs first. An
                    application for extension of stay may not be
                    filed during the pendency of an alien's
                    previous authorized period of admission, nor
                    after the alien's authorized stay in the United
                    States has expired.
                      ``(C) Work authorization upon filing an
                    application for extension of stay.--An employer
                    may begin employing an alien already in the
                    United States in H-2B status on the day the
                    employer files its application for extension of
                    stay with the Service. For the purpose of this
                    requirement, the term `filing' means sending
                    the application by certified mail via the
                    United States Postal Service, return receipt
                    requested, or delivered by guaranteed
                    commercial delivery which will provide the
                    employer with a documented acknowledgment of
                    receipt of the application. The employer shall
                    provide a copy of the employer's application
                    for extension of stay to the alien, who shall
                    keep the application with the alien's
                    identification and employment eligibility card
                    as evidence that the extension has been filed
                    and that the alien is authorized to work in the
                    United States. Upon approval of an application
                    for extension of stay, the Service shall
                    provide a new employment document to the alien
                    indicating a new validity date, after which the
                    alien is not required to retain a copy of the
                    application for extension of stay.
                      ``(D) Limitation on employment authorization
                    of h-2b aliens without valid identification and
                    employment eligibility card.--An expired
                    identification and employment eligibility card,
                    together with a copy of an application for
                    extension of stay, shall constitute a valid
                    work authorization document for a period of not
                    more than 60 days from the date of application
                    for the extension of stay, after which time
                    only a currently valid identification and
                    employment eligibility card shall be
                    acceptable.
              ``(3) Limitation on an individual's stay in h-2b
            status.--An alien having status as an H-2B alien may
            not have the status extended for a continuous period
            longer than 2 years unless the alien remains outside
            the United States for an uninterrupted period of 6
            months. An absence from the United States may break the
            continuity of the period for which an H-2B visa is
            valid. If the alien has resided in the United States 10
            months or less, an absence breaks the continuity of the
            period if its lasts for at least 2 months. If the alien
            has resided in the United States 10 months or more, an
            absence breaks the continuity of the period if it lasts
            for at least one-fifth the duration of the stay.
      ``(i) Trust Fund to Assure Worker Return.--
              ``(1) Establishment.--There is established in the
            Treasury of the United States a trust fund (in this
            section referred to as the `Trust Fund') for the
            purpose of providing a monetary incentive for H-2B
            aliens to return to their country of origin upon
            expiration of their visas under this section.
              ``(2) Withholding of wages; payment into the trust
            fund.--
                      ``(A) In general.--Employers of H-2B aliens
                    shall--
                              ``(i) withhold from the wages of
                            their H-2B alien workers an amount
                            equivalent to 25 percent of the wages
                            of each H-2B alien worker and pay such
                            withheld amount into the Trust Fund in
                            accordance paragraph (3); and
                              ``(ii) pay to the Trust Fund an
                            amount equivalent to the Federal tax on
                            the wages paid to H-2B aliens that the
                            employer would be obligated to pay
                            under the Federal Unemployment Tax Act
                            and the Federal Insurance Contributions
                            Act.
                    Amounts withheld under clause (i) shall be
                    maintained in such interest bearing account
                    with such a financial institution as the
                    Attorney General shall specify.
              ``(3) Distribution of funds.--The amounts paid into
            the Trust Fund and held pursuant to paragraph
            (2)(A)(i), and interest earned thereon, shall be paid
            by the Attorney General as follows:
                      ``(A) Reimbursement of emergency medical
                    expenses.--To reimburse valid claims for
                    reimbursement of emergency medical services
                    furnished to H-2B aliens, to the extent that
                    sufficient funds are not available on an annual
                    basis from the Trust Fund pursuant to
                    paragraphs (2)(A)(ii) and (4)(B).
                      ``(B) Payments to workers.--Amounts paid into
                    the Trust Fund on behalf of a worker, and
                    interest earned thereon, less a pro rata
                    reduction for any payments made pursuant to
                    subparagraph (A), shall be paid by the Attorney
                    General to the worker if--
                              ``(i) the worker applies to the
                            Attorney General (or the designee of
                            the Attorney General) for payment
                            within 30 days of the expiration of the
                            alien's last authorized stay in the
                            United States as a H-2B alien;
                              ``(ii) in such application the worker
                            establishes that the worker has
                            complied with the terms and conditions
                            of this section; and
                              ``(iii) in connection with the
                            application, the worker tenders the
                            identification and employment
                            authorization card issued to the worker
                            pursuant to subsection (h)(1)(F) and
                            establishes that the worker is
                            identified as the person to whom the
                            card was issued based on the biometric
                            identification information contained on
                            the card.
              ``(4) Administrative expenses and emergency medical
            expenses.--The amounts paid into the Trust Fund and
            held pursuant to paragraph (2)(A)(ii), and interest
            earned thereon, shall be paid by the Attorney General
            as follows:
                      ``(A) Administrative expenses.--First, to the
                    Attorney General, the Secretary of Labor, and
                    the Secretary of State in amounts equivalent to
                    the expenses incurred by such officials in the
                    administration of section 101(a)(15)(H)(ii)(b)
                    and this section.
                      ``(B) Reimbursement of emergency medical
                    services.--Any remaining amounts shall be
                    available on an annual basis to reimburse
                    hospitals for emergency medical services
                    furnished to H-2B aliens as provided in
                    subsection (k)(2).
              ``(5) Regulations.--The Attorney General shall
            prescribe regulations to carry out this subsection.
      ``(j) Investment of Trust Fund.--
              ``(1) In general.--It shall be the duty of the
            Secretary of the Treasury to invest such portion of the
            Trust Fund as is not, in the Secretary's judgement,
            required to meet current withdrawals. Such investments
            may be made only in interest-bearing obligations of the
            United States or in obligations guaranteed as to both
            principal and interest by the United States. For such
            purpose, such obligations may be acquired--
                      ``(A) on original issue at the price; or
                      ``(B) by purchase of outstanding obligations
                    at the market price.
            The purposes for which obligations of the United States
            may be issued under chapter 31 of title 31, United
            States Code, are hereby extended to authorize the
            issuance at par of special obligations exclusively to
            the Trust Fund. Such special obligations shall bear
            interest at a rate equal to the average rate of
            interest, computed as to the end of the calendar month
            next preceding the date of such issue, borne by all
            marketable interest-bearing obligations of the United
            States then forming a part of the public debt, except
            that where such average rate is not a multiple of one-
            eighth of 1 percent next lower than such average rate.
            Such special obligations shall be issued only if the
            Secretary of the Treasury determines that the purchase
            of other interest-bearing obligations of the United
            States, or of obligations guaranteed as to both
            principal and interest by the United States on original
            issue or at the market price, is not in the public
            interest.
              ``(2) Sale of obligation.--Any obligation acquired by
            the Trust Fund (except special obligations issued
            exclusively to the Trust Fund) may be sold by the
            Secretary of the Treasury at the market price, and such
            special obligations may be redeemed at par plus accrued
            interest.
              ``(3) Credits to trust fund.--The interest on, and
            the proceeds from the sale or redemption of, any
            obligations held in the Trust Fund shall be credited to
            and form a part of the Trust Fund.
              ``(4) Report to congress.--It shall be the duty of
            the Secretary of the Treasury to hold the Trust Fund,
            and (after consultation with the Attorney General) to
            report to the Congress each year on the financial
            condition and the results of the operations of the
            Trust Fund during the preceding fiscal year and on its
            expected condition and operations during the next
            fiscal year. Such report shall be printed as both a
            House and a Senate document of the session of the
            Congress to which the report is made.
      ``(k) Reimbursement of Cost of Emergency Medical Services.--
              ``(1) In general.--The Attorney General shall
            establish procedures for reimbursement of hospitals
            operated by a State or by a unit of local government
            (or corporation owned or controlled by the State or
            unit) for the reasonable cost of providing emergency
            medical services (as defined by the Attorney General in
            consultation with the Secretary of Health and Human
            Services) in the United States to H-2B aliens for which
            payment has not been otherwise reimbursed.
              ``(2) Source of funds for reimbursement.--Funds for
            reimbursement of hospitals pursuant to paragraph (1)
            shall be drawn--
                      ``(A) first under subsection (i)(4)(B), from
                    amounts deposited in the Trust Fund under
                    subsection (i)(2)(A)(ii) after reimbursement of
                    certain administrative expenses; and
                      ``(B) then under subsection (i)(3)(A), to the
                    extent that funds described in subparagraph (A)
                    are insufficient to meet valid claims, from
                    amounts deposited in the Trust Fund under
                    subsection (i)(2)(A)(i).
      ``(l) Miscellaneous Provisions.--
              ``(1) Applicability of labor laws.--Except as
            provided in paragraphs (2), (3), and (4), all Federal,
            State, and local labor laws (including laws affecting
            migrant farm workers) applicable to United States
            workers shall also apply to H-2B aliens.
              ``(2) Limitation of written disclosure imposed upon
            recruiters.--Any disclosure required of recruiters
            under section of 201(a) of the Migrant and Seasonal
            Agricultural Worker Protection Act (29 U.S.C. 1821(a))
            need not be given to H-2B aliens prior to the time
            their visa is issued permitted entry into the United
            States.
              ``(3) Exemption from fica and futa taxes.--The wages
            paid to H-2B aliens shall be excluded from wages
            subject to taxation under the Federal Unemployment Tax
            Act and under the Federal Insurance Contributions Act.
              ``(4) Ineligibility for certain public benefits
            programs.--
                      ``(A) In general.--Notwithstanding any other
                    provision of law and except as provided in
                    subparagraph (B), any alien provided status as
                    an H-2B alien shall not be eligible for any
                    Federal or State or local means-tested public
                    benefit program.
                      ``(B) Exceptions.--Subparagraph (A) shall not
                    apply to the following:
                              ``(i) Emergency medical services.--
                            The provision of emergency medical
                            services (as defined by the Attorney
                            General in consultation with the
                            Secretary of Health and Human
                            Services).
                              ``(ii) Public health immunizations.--
                            Public health assistance for
                            immunizations with respect to
                            immunizable diseases and for testing
                            and treatment for communicable
                            diseases.
                              ``(iii) Short-term emergency disaster
                            relief.--The provision of non-cash, in-
                            kind, short-term emergency disaster
                            relief.
      ``(m) Consultation on Regulations.--
              ``(1) Regulations of the secretary.--The Secretary
            shall consult with the Secretary of Agriculture, and
            the Attorney General shall approve, all regulations
            dealing with the approval of labor condition
            attestations for H-2B aliens or enforcement of the
            requirements for employing H-2B aliens under an
            approved attestation.
              ``(2) Regulations of the attorney general.--The
            Attorney General shall consult with the Secretary of
            Agriculture on all regulations dealing with the
            approval of petitions for admission or extension of
            stay of H-2B aliens or the requirements for employing
            H-2B aliens or the enforcement of such requirements.
      ``(n) Definitions.--For the purpose of this section:
              ``(1) Agricultural association.--The term
            `agricultural association' means any nonprofit or
            cooperative association of farmers, growers, or
            ranchers incorporated or qualified under applicable
            State law, which recruits, solicits, hires, employs,
            furnishes, or transports any agricultural workers.
              ``(2) Agricultural employment.--The term
            `agricultural employment' means any service or activity
            included within the provisions of section 3(f) of the
            Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or
            section 3121(g) of the Internal Revenue Code of 1986
            and the handling, planting, drying, packing, packaging,
            processing, freezing, or grading prior to delivery for
            storage of any agricultural or horticultural commodity
            in its unmanufactured state.
              ``(3) Employer.--The term `employer' means any person
            or entity, including any independent contractor and any
            agricultural association, that employs workers.
              ``(4) H-2B alien.--The term `H-2B alien' means an
            alien admitted to the United States or provided status
            as a nonimmigrant under section 101(a)(15)(H)(ii)(b).
              ``(5) Qualified state employment security agency.--
            The term `qualified State employment security agency'
            means a State employment security agency in a State in
            which the Secretary has determined that the State
            operates a job service that actively seeks to match
            agricultural workers with jobs and participates in a
            multi-State job service program in States where
            significant supplies of farm labor exist.
              ``(6) Secretary.--The term `Secretary' means the
            Secretary of Labor.
              ``(7) United states worker.--The term `United States
            worker' means any worker, whether a United States
            citizen, a United States national, or an alien, who is
            legally permitted to work in the job opportunity within
            the United States other than aliens admitted pursuant
            to this section.''
      (b) Clerical Amendment.--The table of contents is amended by
    inserting after the item relating to section 218 the following
    new item:

    ``Sec. 218A. Alternative agricultural worker program.''.

      Page 147, after line 5, insert the following:
                      (J)(i) Section 214(l)(2), as added by section
                    822(c), is amended by striking ``241(a)(1)(C)''
                    and inserting ``237(a)(1)(C)''.
                      (ii) Section 218A(c)(8)(B), as inserted by
                    section 823(a), is amended by striking
                    ``deportation under section 241(a)(1)(C)(i)''
                    and inserting ``removal under section
                    237(a)(1)(C)(i)''.

                                 Brief Summary

        The Committee on Agriculture added a subtitle B to title
    VIII of H.R. 2202. Subtitle B will modify the current temporary
    agriculture worker program, commonly known as H-2A, by creating
    an alternative program to be known as H-2B.
        The new H-2B program will be a pilot program authorized for
    the same three-year period as the verification system provided
    for under section 274A of the Immigration and Nationality Act
    (as amended by this Act). If Congress extends the verification
    system, Congress shall also extend the H-2B pilot program for
    the same period of time. No more than 250,000 aliens may be
    admitted as H-2B workers in the first year of this program.
    Each year thereafter, this limit shall be decreased by 25,000.
        The new H-2B program will differ from H-2A in several key
    areas.
        Unlike H-2A, which requires a detailed and lengthy
    application process, the H-2B program will require the employer
    to file a Labor Condition Attestation with the State Employment
    Security Agency in the area of intended employment. To be
    accepted by the State Employment Security Agency, the
    attestation must contain the following:
              (a) The wage rate--the H-2B worker must be paid the
            prevailing wage for similarly employed workers in the
            area of employment;
              (b) The H-2B worker will not adversely affect the
            working conditions of similarly employed workers in the
            area of employment;
              (c) The job is seasonal or temporary, or will not
            last more than 10 months in any 12-month period;
              (d) The H-2B worker will not take a job that is
            vacant because of a strike, lockout, or work stoppage;
              (e) The employer has provided notice of the
            attestation to domestic workers employed in the
            occupation in which the H-2B worker will be employed;
              (f) The employer will file a job order for the
            occupation covered by the attestation no later than the
            date on which the employer first employs any H-2B
            worker; and
              (g) The employer will give preference to any able,
            willing, and qualified U.S. worker who applies and is
            available the later of the first 25 days after the
            filing of the job order or until 5 days before the date
            the H-2B worker begins.
        Under the current H-2A program the employer must pay the
    higher of the prevailing wage or the ``Adverse Effect Wage
    Rate.'' This rate is the average for all field and livestock
    worker occupations in a particular region. Because it includes
    all occupations, this wage often overstates the wage for many
    occupations.
        Under the H-2B program, the employer must pay the
    prevailing wage. The prevailing wage will be determined by the
    State Employment Security Agency if the employer requests.
    Alternatively, the employer may determine the prevailing wage
    by use of some other method which meets the criteria
    established by the Secretary of Labor, such as an employer
    generated wage survey. The prevailing wage may not be lower
    than the minimum wage.
        Under the current H-2A program, the employer must provide
    housing for all workers needed, whether or not they all need
    such housing.
        Under the H-2B program, the employer must offer the H-2B
    and U.S. workers recruited from beyond normal recruiting
    distances housing if it is the prevailing practice in the
    occupation and the area of intended employment.
        If the employer must offer housing, the employer may do so
    by offering the H-2B and U.S. workers a reasonable housing
    allowance.
        Under the current H-2A program, the employer must reimburse
    the alien worker for transportation costs from the point of
    hire to the workplace if the worker completes 50% of the
    contract period.
        Under the H-2B program, if the employer provides
    transportation arrangements or assistance to H-2B workers, the
    employer must provide similar assistance to U.S. workers in the
    same occupation who were recruited from beyond a normal
    commuting distance.
        The Secretary of Labor is responsible for investigating and
    acting on all complaints. An employer who submits false
    information on an attestation or fails to pay the required
    wages may be ordered to pay back wages or assessed a civil
    penalty of up to $1000 for each failure. A second violation may
    result in disqualification for up to 3 years, and a third
    violation will result in permanent disqualification from the
    program.
        The employer shall withhold 25% of the H-2B worker's wages.
    The withheld funds will be placed in a trust fund administered
    by the Attorney General that can be accessed by the alien only
    upon the alien's return to his or her home country.
        Additionally, the employer shall pay to the trust fund an
    amount equal to the Federal Unemployment Tax and the Federal
    Insurance Contributions Act for the H-2B worker. These funds
    will be used to reimburse the Attorney General, Secretary of
    Labor, and the Secretary of State for the costs of
    administering the H-2B program.
        Each H-2B worker will be issued an identification card
    which will contain a picture, identifying information, and
    other biometric information, such as encrypted finger prints.
    The alien must present this card and have his or her identity
    verified before the alien can access the funds in the trust
    account upon return to the alien's home country.

                                Purpose and Need

        The week of March 19th, the House is expected to take up
    consideration of comprehensive and sweeping immigration reform
    legislation, H.R. 2202 ``The Immigration in the National
    Interest Act of 1995''.
        Earlier in the year, as the various committees began
    consideration of H.R. 2202, the bill was additionally referred
    to the House Committee on Agriculture as was the predecessor
    bill, H.R. 1915. Many in the agriculture community believe it
    is critically important that any immigration bill passed by the
    Congress ensure a supply of temporary and seasonal workers for
    American agriculture and that issue is addressed in subtitle B
    of title VIII of H.R. 2202 as reported by the Committee.
        A sizeable majority of the House Committee on Agriculture
    acted to amend H.R. 2202 adding an enhancement to the current
    H-2A guest worker program to be known as H-2B. Anticipating the
    effects of H.R. 2202 on the agriculture labor supply the
    committee cites the following justifications for reform of the
    current agriculture guest worker program:
        Hired labor is one of the most important and costly inputs
    in farming. U.S. farmers spent $15 billion on hired labor
    expenses in 1992--one of every eight dollars of farm production
    expenses. For the labor intensive fruit, vegetable and
    horticulture sector, labor accounts for 35 to 45 percent of
    production costs.
        The competitiveness of U.S. agriculture, especially the
    fruit, vegetable and horticultural specialty sectors, depends
    on the continued availability of hired labor at a reasonable
    cost. U.S. farmers, including producers of labor intensive
    perishable commodities, compete directly with producers in
    other countries for market share in both U.S. and foreign
    commodity markets.
        The availability of adequate seasonal labor has enabled
    U.S. producers to expand production and exports of labor
    intensive commodities. This has created tens of thousands of
    jobs for U.S. workers in ``upstream'' and ``downstream''
    industries. Approximately three off-farm jobs depend directly
    on each on-farm job.
        Effective immigration control will significantly reduce the
    supply of seasonal labor for U.S. agriculture, because many
    seasonal agricultural workers currently employed in agriculture
    are not legally entitled to work in the U.S., although they
    possess documents employers are obligated to accept under
    current law.
        Employment of U.S. workers cannot be expanded to replace
    the alien labor displaced by current immigration control
    proposals. U.S. workers will always prefer regular over
    seasonal employment, local over migratory work, and less
    physically demanding, indoor work over more demanding manual
    work in sometimes uncomfortable conditions.
        U.S. farmworkers' wages will not be forced up by
    eliminating alien labor, because growers' production costs are
    capped by world market commodity prices. Instead, a reduction
    in the work force available to agriculture will force U.S.
    producers to reduce production to the level that can be
    sustained by a smaller work force.
        Reduced U.S. production of labor intensive agricultural
    commodities will eliminate the jobs of U.S. workers in farming,
    input production and services and product handling industries
    that are dependent on the U.S. production.
        The end result of failure to provide a legal temporary
    alien worker program for U.S. agriculture will be to reduce
    U.S. farm production and agribusiness employment, with little
    or no change in domestic farmworker employment or wages.

                          Section-By-Section Analysis

                            section 821 short title

        This Act may be cited as the ``Temporary Agriculture Worker
    Amendments of 1996''.

    section 822. new nonimmigrant h-2b category for temporary agricultural
                                    workers

        This section amends section 101 of the Immigration and
    Nationality Act (INA) to divide the existing H-2A temporary
    agricultural admission category into two categories: H-2A, the
    current program, which is retained, and H-2B, the new program
    established by this amendment. It redesignates the existing H-
    2B temporary nonagricultural admission program as H-2C. The
    section also excludes spouses and minor children of aliens
    admitted under the newly created H-2B provisions from
    derivative eligibility for admission. This section also
    excludes aliens from participation in the program who are
    convicted of ownership or operation of a motor vehicle in the
    United States without insurance, and upon such a conviction of
    an alien already in the United States, terminates the status of
    the alien.

      section 823. alternative temporary worker process using attestations

        This section amends the INA by adding a new section 218A
    establishing an alternative procedure for the admission of H-2
    nonimmigrants to perform agricultural labor or services on a
    temporary or seasonal basis, designated H-2B aliens.

    Section 218A(a)--Condition for the employment of H-2B aliens

        This subsection provides that an H-2B alien may not be
    admitted unless the employment is covered by a Labor Condition
    Attestation (LCA) filed by the employer or an association on
    behalf of the employer for the occupation in which this alien
    is to be employed. The attestation must be accepted by the
    qualified State Employment Security Agency having jurisdiction
    over the area of intended employment and must include the
    statements specified in this subsection. The employer must not
    have been disqualified from employing H-2B aliens. This section
    lists the obligations to which an employer must attest on the
    Labor Condition Application, which are spelled out more fully
    in Subsection 218A(c). The H-2B program is a pilot program
    authorized for the same three-year period as the verification
    system provided for under section 274A of the Immigration and
    Nationality Act (as amended by this Act). If Congress extends
    the verification system, Congress shall also extend the H-2B
    pilot program for the same period of time. No more than 250,000
    aliens may be admitted as H-2B workers in the first year of
    this program. Each year thereafter, this limit shall be
    decreased by 25,000.

    Section 218A(b)--Filing a labor condition attestation

        This subsection sets out the process for filing and
    withdrawing an LCA. Any employer in the U.S. is eligible to
    file an LCA. Associations may file LCA's on behalf of employer
    members who have agreed in writing to comply with the program
    requirements. LCA's are filed with the qualified State
    employment security agency having jurisdiction over the area of
    intended employment of the H-2B alien. An LCA may be filed up
    to 12 months prior to the employer's anticipated need for
    workers and is valid for 12 months from the date it is accepted
    by the qualified State employment security agency. LCA's may be
    filed for a single occupation or multiple occupations.
    Employers who file LCA's are required to maintain certain
    documentation of their compliance with the program, and to make
    this documentation available to the Secretary of Labor for
    inspection. The attestation conditions apply from the time the
    LCA is filed and continue through the period any persons are
    employed in an occupation covered by an accepted LCA, unless
    the LCA is withdrawn. An LCA may not be withdrawn while any H-
    2B aliens are employed in an occupation covered by an LCA. Any
    obligations incurred by an employer as a result of recruiting
    U.S. workers under an offer of employment required by the LCA
    are unaffected by withdrawal of an LCA.

    Section 218A(c)--Employer responsibilities and requirements for
            employing H-2B nonimmigrants

        This subsection sets out the requirements for compliance
    with the attestations set forth in subsection (a) and the
    documentation the employer is required to maintain pursuant to
    subsection (b).
        Section 218A(c)(1) requires that employers pay at least the
    prevailing wage in the occupation in the area of intended
    employment in occupations covered by an LCA. Employers are not
    required to pay all workers in the occupation the same way so
    long as all workers are paid at least the prevailing wage.
    Employers may request a prevailing wage determination from the
    qualified State employment security agency, or may rely on a
    wage survey, including an employer-generated survey, which
    meets criteria specified by the Secretary of Labor. Employers
    may utilize a different method of pay than that in which the
    prevailing wage is expressed, but if an employer does so, the
    burden of proof is on the employer to demonstrate that the
    employer's method of pay is designed to produce earnings
    equivalent to the earnings that would result from the
    prevailing rate.
        Section 218A(c)(2) requires that in complying with this
    attestation the employer is required to offer housing or a
    reasonable housing allowance to U.S. workers and H-2B aliens if
    it is the prevailing practice in the occupation and area of
    intended employment to offer housing or a housing allowance to
    workers who are recruited from beyond normal commuting
    distance. Housing provided may be either housing which meets
    Federal farm labor housing standards or rental or other public
    accommodation housing which meets applicable standards.
    Employers may make a charge not greater than the employers'
    actual cost for utilities and maintenance. Employers may
    require a reasonable damage deposit, and an employer may
    require occupants responsible for damage to reimburse the
    employer the reasonable cost of repair.
        This paragraph also requires employers to offer U.S.
    workers the same transportation arrangements or assistance
    (generally comparable in expense and scope) provided to H-2B
    aliens.
        This paragraph also requires employers whose employment is
    not covered by a state workers' compensation law to provide
    insurance covering work related injury and illness which
    provides benefits at least equal to those provided under the
    state workers' compensation law for comparable employment.
        Section 218A(c)(3) requires that H-2B aliens be employed
    only in job opportunities which are seasonal or temporary.
    ``Seasonal'' employment is of the kind exclusively performed at
    certain seasons or periods of the year and which, from its
    nature, may not be continuous or carried on throughout the
    year. ``Temporary'' employment is employment not intended to
    exceed 10 months.
        Section 218A(c)(4) provides that no H-2B alien may be
    employed in any job opportunity which is vacant because its
    former occupant is involved in a strike, lockout, or work
    stoppage in the course of a labor dispute in the occupation at
    the place of employment.
        Section 218A(c)(5) requires employers filing LCA's to
    provide notice of the filing to the certified bargaining agent,
    if any, or to post notice of the filing in conspicuous
    locations where applications for employment are accepted.
        Section 218A(c)(6) requires the employer to file the
    information necessary to complete a local job order for each
    occupation covered by an approved LCA with the local office of
    the qualified State employment security agency having
    jurisdiction over the area of intended employment of H-2B
    aliens. The job order is required to be maintained on file for
    25 calendar days or until 5 calendar days before the employers'
    anticipated date of need for workers, whichever occurs later.
    The job order must be filed no later than the day on which the
    employer files a petition with the Immigration and
    Naturalization Service (INS) for the admission or extension of
    stay of H-2B aliens in the occupation.
        Section 218A(c)(7) requires the employer to offer to employ
    able, willing and qualified U.S. workers who apply to the
    employer and who will be available at the time and place needed
    for the job opportunities coved by an approved LCA for the
    first 25 days after a job order for the occupation is filed or
    until 5 days before the anticipated date of need for workers,
    whichever occurs later. The employer may fill vacancies that
    occur after the expiration of this U.S. worker preference
    period without regard to the preference. The employer is not
    required to employ or to continue the employment of a worker
    who fails to meet lawful job-related employment requirements,
    including a minimum productivity standard after a 3-day break-
    in period.
        Section 218A(c)(8) requires employers to notify the INS
    within 7 days if an H-2B alien terminates employment and
    provides that under such circumstances the alien will be deemed
    out of status and subject to removal or deportation.

    Section 218A(d)--Acceptance by qualified State employment security
            agency

        This subsection provides that the qualified Statement
    employment security agency review LCA's only for completeness
    and obvious inaccuracies and unless the application is
    incomplete or obviously inaccurate the agency must mark it
    ``accepted'' and return a copy to the employer within 7 days of
    filing.

    Section 218A(e)--Public registry

        This subsection requires the Secretary of Labor to maintain
    a public registry of all accepted LCA's.

    Section 218A(f)--Responsibilities of the qualified State employment
            security agency

        This subsection requires the Secretary of Labor to direct
    the qualified State employment Security agency to disseminate
    non-employer-specific information about potential labor needs
    based on accepted LCA's without requiring filing of intra- or
    interstate job orders. The subsection also authorizes the
    qualified State employment Security agency to refer any able,
    willing and qualified eligible job applicant, including H-2B
    aliens whose eligibility to remain in the United States has not
    expired, on job orders filed by holders of accepted LCA's.

    Section 218A(g)--Enforcement and penalties

        This subsection requires the Secretary of Labor to
    establish a process for the receipt, investigation and
    disposition of complaints respecting an employer's failure to
    comply with a condition of the H-2B program. Complaints may be
    filed by any aggrieved person or organization, including
    bargaining representatives. The Secretary is required to
    investigate complaints for which there is reasonable cause to
    believe that a violation occurred. The Subsection also provides
    for penalties upon a final determination that a violation has
    occurred. Penalties include back wages, civil money penalties
    and/or debarment from the program for up to one year. An
    employer who commits a second violation of willfully failing to
    pay required wages will be disqualified from the program for 3
    years. An employer who commits a third violation of willfully
    failing to pay the required wage will be permanently debarred
    from participation in the program. If an employer who is a
    member of an association is determined to have committed a
    violation, the penalty applies to the employer. If an
    association which employs workers directly is determined to
    have committed a violation, the penalty applies to the
    association. However if the association is disqualified from
    employing H-2B aliens, no member of the association may be the
    beneficiary of the services of an H-2B alien unless the
    employer files an LCA individually or through an association
    with which the employer has an agreement that the employer will
    comply with the requirements of the program.

    Section 218A(h)--Procedures for admission or extension of H-2B aliens

        This subsection provides that petitions for admission of H-
    2B aliens are filled with the District Director of the INS
    having jurisdiction over the location where the aliens will be
    employed. Petitions may be for named or unnamed beneficiaries.
    If the petition is correctly filled out and the employer is not
    ineligible to employ H-2B aliens, the District Director must
    approve the petition within 3 working days. A copy of the
    approved petition is transmitted to the visa issuing consulate
    and the port of entry. The petitioning employer must approve
    the issuance of visas to aliens who are unnamed beneficiaries
    of petitions. Aliens must be admissible under the INA and must
    not be debarred from participating in the H-2B program. Aliens
    are admitted for the period requested by the petitioner, but
    not to exceed 10 months or the remaining validity period of the
    petition's LCA, whichever is less, plus an additional 14 days
    during which the alien may make himself available for
    additional authorized H-2B employment. H-2B aliens must be
    issued a tamper- and counterfeit-resistant identification and
    employment authorization card. An employer may employ an H-2B
    alien who is already in the U.S. and who has completed his
    previous authorized period of employment and who is eligible to
    remain in the U.S. by filing a request for an extension of stay
    with the INS. The maximum continuous period of stay for an H-2B
    alien is 2 years.

    Section 218A(i)--Trust fund to assure worker return

        This subsection requires employers to withhold 25 percent
    of the wages of H-2B aliens to be paid into a trust fund. H-2B
    aliens may apply for the amount held in the trust fund on their
    behalf by establishing that the worker complied with the terms
    and conditions of the program and tendering the worker's
    identity and employment authorization card. Claims by public
    hospitals for reimbursement of emergency medical services in
    excess of those reimbursed by the user-fee trust fund
    (described in the paragraph below) would also be paid out of
    the wage withholding trust fund. Employers are also required to
    pay into the trust fund an amount equivalent to the Federal tax
    on the wages paid to H-2B aliens that the employer would be
    obligated to pay under the Federal Unemployment Tax Act (FUTA)
    and the Federal Insurance Contributions Act (FICA). Payments
    out of this trust fund will be made to the Attorney General,
    the Secretary of Labor and the Secretary of State, for
    reimbursement of expenses incurred in the administration of the
    program. Remaining funds are available for the Attorney General
    to reimburse public hospitals for unreimbursed costs of
    providing emergency medical services to H-2B aliens.

    Section 218A(j)--Investment of trust fund

        This subsection prescribes how the funds in the trust fund
    established by subsection (i) shall be invested and requires
    the Secretary of the Treasury to report annually to the
    Congress on the financial condition of the fund and the results
    of the previous year's operation.

    Section 218A(k)--Reimbursement of cost of emergency medical services

        This subsection provides that the Attorney General shall
    establish procedures for reimbursement of public hospitals for
    the reasonable cost of providing emergency medical services to
    H-2B aliens for which payment has not been otherwise made.
    Funds for the reimbursement will be drawn from those remaining
    in the user-fee trust fund after reimbursement of
    administrative costs of the program. To the extent that
    sufficient funds are not available from the user-fee trust
    fund, reimbursements will be made from the wage withholding
    trust fund.

    Section 218A(l)--Miscellaneous provisions

        This subsection provides: (1) That all Federal, State and
    local labor laws applicable to U.S. workers shall be applicable
    to H-2B aliens; (2) provides that written disclosures required
    to be provided by the Migrant and Seasonal Agricultural Worker
    Protection Act may be made to aliens under this program at the
    time their visa is issued prior to entry into the United
    States; (3) exempts the wages paid to H-2B aliens from taxation
    under the FICA and the FUTA; and (4) makes H-2B aliens
    ineligible for any Federal, State or local means-tested public
    benefit program except noncash, in-kind emergency assistance
    (including emergency medical services), and public health
    immunizations.

    Section 218A(m)--Consultation on regulations

        This subsection provides that the Secretary of Labor shall
    consult with the Secretary of Agriculture and that the Attorney
    General shall approve all regulations dealing with approval of
    LCA's for H-2B aliens or enforcement of the requirements for
    employing H-2B aliens. It also provides that the Attorney
    General shall consult with the Secretary of Agriculture on all
    regulations dealing with the approval of petitions for
    admission or extension of stay of H-2B aliens or the
    requirements for employing H-2B aliens or for the enforcement
    of such requirements.

    Section 218A(n)--Definitions

        This subsection defines terms used in the Act.

                            Committee Consideration

                                  I. Hearings

        On December 14, 1995, the Full Committee on Agriculture and
    the Subcommittee on Risk Management and Specialty Crops held a
    joint hearing with the Subcommittee on Immigration and Claims
    of the Committee on the Judiciary.
        Chairman Roberts called the joint meeting to order for the
    purpose of reviewing the agriculture guest worker programs to
    assure that agricultural producers can secure the services of a
    sufficient number of seasonal workers during critical harvest
    times.
        There was a great deal of interest expressed by the Members
    of the Committee on this issue and their prepared opening
    statements can be found printed in Hearing Serial No. 104-24.
        Shortly after opening statements, Chairman Roberts
    adjourned the Full Committee so that the joint hearing between
    the Subcommittee on Risk Management and Specialty Crops and the
    Judiciary Subcommittee on Immigration and Claims could begin
    with the prepared testimony and questioning of witnesses.
        The Subcommittees received testimony from the following
    witnesses: Dr. Keith J. Collins, USDA; Mr. C. Stan Eury,
    President, North Carolina Growers Association on behalf of the
    American Association of Nurserymen and National Council of
    Agricultural Employers; Mr. Bruce Goldstein, Attorney,
    Farmworker Justice Fund; Dr. James S. Holt, Senior Economist,
    McGuiness & Williams on behalf of the National Council of
    Agricultural Employers; Ms. Delores Huerta, First Vice
    President, United Farm Workers Union; Dr. Mark J. Miller,
    Department of Political Science and International Relations,
    University of Delaware; Mr. Russell L. Williams, Agricultural
    Producers; Mr. Steve Appel, Washington State Farm Bureau on
    behalf of the American Farm Bureau Federation; Mr. Israel Baez,
    Manager of Employee Relations, A. Duda and Sons, Inc.; Mr.
    Robert Dasher on behalf of Vidalia Onion Business Council; Mr.
    John R. Hancock, former Chief of Agricultural Labor
    Certification, U.S. Department of Labor; and Mr. Chandler Keys,
    Senior Director Congressional Relations, National Cattlemen's
    Association.

                        II. Full Committee Consideration

        The Committee on Agriculture met, pursuant to notice, on
    March 5, 1996, the matter having been held at the Full
    Committee, a quorum being present, to consider the bill H.R.
    2202, the ``Immigration in the National Interest Act of 1995.''
        The Chairman called the meeting to order at 2:15 p.m. and
    after giving Members permission to submit statements for the
    record, stated that the Committee would consider an amendment
    being offered by Mr. Pombo, which would add a Subtitle B to
    Title VIII of H.R. 2202 regarding temporary agricultural guest
    workers, and that it would be considered as original text for
    purposes of amendment.
        The Chairman also stressed the need for the Committee to
    take action on agricultural issues relevant to immigration
    reform. It was further noted that H.R. 2202 has been reported
    by the Committee on the Judiciary and was scheduled for House
    Floor consideration on March 19, 1996.
        Without objection, the amendment offered by Mr. Pombo was
    laid before the Committee and was considered as original text
    for purposes of amendment. A section-by-section analysis of the
    amendment was also made available to each Member at the
    rostrum.
        Thereafter, Mr. Volkmer made a motion that the Committee
    postpone indefinitely consideration of the Pombo amendment, and
    requested a show-of-hands vote on the motion. The Chairman
    reiterated the need for the Committee to claim its jurisdiction
    on the measure and the need to report the measure in order that
    the bill H.R. 2202 could be considered on the House Floor by
    March 19. Discussion occurred and by a show of hands, 16 years
    to 22 nays, the Volkmer motion was not agreed to.
        Mr. Goodlatte was then recognized to offer and explain an
    amendment that would convert the Pombo guest worker amendment
    into a three-year program designed to last as long as the
    employment eligibility confirmation telephone verification
    system which is implemented by H.R. 2202.
        Discussion continued on the Goodlatte amendment with Mr.
    Pombo offering a verbal amendment which would tie the
    reauthorization of the pilot program to the reauthorization of
    the verification number, and the H-2B program would be
    authorized for the length of time that the verification number
    as noted in the preceding paragraph would be authorized. Mr.
    Goodlatte indicated that he would accept the Pombo verbal
    amendment, which without objection, it was adopted.
        Further discussion occurred on the Goodlatte amendment and
    without objection, the Goodlatte amendment, as amended by the
    verbal Pombo amendment, was adopted.
        Mr. Goodlatte then offered and explained an amendment that
    would place a cap on the number of alien guest workers who can
    come into the country at 250,000 in the first year, with a
    reduction of 25,000 in each subsequent year. Discussion
    occurred and by a recorded vote of 24 yeas to 13 nays, with 1
    voting present, the amendment was adopted. See Rollcall Vote
    No. 1.
        Mr. Farr was then recognized to offer and explain an
    amendment regarding State farm worker guarantees of minimum
    labor standards. Lengthy discussion occurred on the amendment
    with Mr. Gunderson pointing out that there appeared to be an
    error in the provision concerning overtime pay and that the
    words ``per day'' should be inserted after the word ``hours''.
    Mr. Farr then requested by unanimous consent that the amendment
    be changed and without objection, the amendment was corrected.
        Further discussion and questions occurred on the Farr
    amendment with Mr. Latham, Mr. Pomeroy and Mr. Condit making
    inquiries concerning the amendment. Mr. Pomeroy expressed his
    opinion that with respect to the question of unfunded mandates
    issues that it is nonexistent with respect to the Farr
    amendment because it is part of a program that a State may opt
    into or out of. Mr. Farr, noting that he hoped his amendment
    and its discussion brought to light some problems with the bill
    as regards below minimum standards for farm workers addressed
    by his amendment, and the amendment was withdrawn.
        Mr. Farr then offered and explained an amendment regarding
    multi-State recruitment in States which operate a job service
    program to insure that domestic workers are considered first
    for the jobs before bringing in guest workers. Mr. Pombo noted
    that the amendment would require participating agricultural
    employers to file job orders with the local Job Service and
    would require the Department of Labor to designate nonemployer-
    specific information about potential labor needs. Mr. Pombo
    further stated that the amendment would not severely change any
    of the provisions of the underlying amendment and by a voice
    vote the Farr amendment was adopted.
        Mr. Combest was then recognized and moved that H.R. 2202,
    as amended, be adopted and reported favorably to the House with
    the recommendation that it do pass. Mr. Volkmer requested a
    rollcall vote, but before the rollcall vote had been completed,
    the Chairman noted a parliamentary oversight that had occurred
    because a motion had not been made to approve the Pombo
    amendment, as amended. The Chairman then requested by unanimous
    consent to vacate the rollcall vote, then in progress, and to
    proceed by approving the Pombo amendment, as amended. Without
    objection, the vote as vacated.
        The Chairman then asked for a voice vote on the Pombo
    amendment, as amended. Mr. Volkmer requested a rollcall vote
    and by a recorded vote of 25 yeas and 14 nays, with 1 voting
    present, the Pombo amendment was adopted. See Rollcall Vote No.
    2.
        Without objection, it was agreed to record Messrs. Minge
    and Combest as they were recorded on the aforementioned vacated
    vote.
        Mr. Roberts then moved that the bill H.R. 2202, as amended,
    be adopted and reported favorably to the House. By a recorded
    vote of 28 yeas to 11 nays, with 1 voting present, and in the
    presence of a quorum, H.R. 2202, as amended, was ordered
    favorably reported to the House. See Rollcall Vote No. 2.
        Mr. Minge was then recognized and requested unanimous
    consent that the record show that he initially voted against
    the Pombo amendment and that was his position on the revote as
    well. Without objection, Mr. Minge and Mr. Combest were
    recorded on the vote of the Pombo amendment as they were
    recorded on the vacated vote.
        Mr. Roberts then made a motion to authorize the Chairman to
    offer such motions as may be necessary in the House to go to
    conference with the Senate on H.R. 2202 or a similar Senate
    bill.
        Mr. Hilliard requested a rollcall on the motion, but there
    was an insufficient number of Members in favor of a rollcall
    vote.
        Mr. de la Garza was then recognized and gave notice of the
    intent of the Minority to file additional minority, or
    supplementing views.
        Without objection, staff was given permission to make such
    technical, clarifying, or conforming changes as are appropriate
    without changing the substance of the legislation.
        The Chairman then thanked the Members and adjourned the
    meeting subject to the call of the chair.

                                 rollcall votes

        In compliance with clause 2(l)(2)(B) of rule XI of the
    House of Representatives, the Committee sets forth the record
    of the following rollcall votes taken with respect to H.R.
    2202:

    Rollcall No. 1

        Summary: Cap on the number of alien guest workers who can
    come into the country at 250,000 in the first year with a
    reduction of 25,000 in each subsequent year.
        Offered By: Mr. Goodlatte.
        Results: Adopted to rollcall vote: 24 yeas/13 nays/1
    present/10 not voting.
        Yeas: Cong. Combest, Cong. Allard, Cong. Barrett, Cong.
    Ewing, Cong. Goodlatte, Cong. Canady, Cong. Smith, Cong. Lucas,
    Cong. Hostettler, Cong. Bryant, Cong. Latham, Cong. Foley,
    Cong. Stenholm, Cong. Volkmer, Cong. Clayton, Cong. Minge,
    Cong. Hilliard, Cong. Pomeroy, Cong. Thurman, Cong. Bishop,
    Cong. Thompson, Cong. Farr, Cong. Pastor, and Cong. Baldacci.
        Nays: Cong. Gunderson, Cong. Doolittle, Cong. Pombo, Cong.
    Everett, Cong. Lewis, Cong. Baker, Cong. Calvert, Cong. Cooley,
    Cong. Chambliss, Cong. LaHood, Cong. Condit, Cong. Dooley, and
    Cong. Roberts, Chairman.
        Present: Cong. de la Garza.
        Not voting: Cong. Emerson, Cong. Boehner, Cong. Crapo,
    Cong. Chenoweth, Cong. Brown, Cong. Rose, Cong. Johnson, Cong.
    Peterson, Cong. Holden, and Cong. Baesler.

    Rollcall No. 2

        Summary: Adding a Subtitle B to Title VII regarding
    temporary agricultural guest workers. The Pombo amendment, as
    amended.
        Offered By: Mr. Pombo.
        Results: Adopted by a rollcall vote: 25 yeas/14 nays/1
    present/8 not voting.
        Yeas: Cong. Gunderson, Cong. Allard, Cong. Barrett, Cong.
    Boehner, Cong. Ewing, Cong. Doolittle, Cong. Pombo, Cong.
    Canady, Cong. Smith, Cong. Everett, Cong. Lucas, Cong. Lewis,
    Cong. Baker, Cong. Crapo, Cong. Calvert, Cong. Bryant, Cong.
    Latham, Cong. Cooley, Cong. Foley, Cong. Chambliss, Cong.
    LaHood, Cong. Condit, Cong. Dooley, Cong. Bishop, and Cong.
    Roberts, Chairman.
        Nays: Cong. Goodlatte, Cong. Hostettler, Cong. de la Garza,
    Cong. Stenholm, Cong. Volkmer, Cong. Peterson, Cong. Clayton,
    Cong. Minge, Cong. Hilliard, Cong. Pomeroy, Cong. Thompson,
    Cong. Farr, Cong. Pastor, and Cong. Baldacci.
        Present: Cong. Thurman.
        Not voting: Cong. Emerson, Cong. Combest, Cong. Chenoweth,
    Cong. Brown, Cong. Rose, Cong. Johnson, Cong. Holden, and Cong.
    Baesler.

    Rollcall No. 3

        Summary: Final Passage H.R. 2202, as amended.
        Offered By: Mr. Roberts.
        Results: Adopted by a rollcall vote: 28 yeas/11 nays/1
    present/8 not voting.
        Yeas: Cong. Gunderson, Cong. Allard, Cong. Barrett, Cong.
    Boehner, Cong. Ewing, Cong. Doolittle, Cong. Goodlatte, Cong.
    Pombo, Cong. Canady, Cong. Smith, Cong. Everett, Cong. Lucas,
    Cong. Lewis, Cong. Baker, Cong. Crapo, Cong. Calvert, Cong.
    Bryant, Cong. Latham, Cong. Cooley, Cong. Foley, Cong.
    Chambliss, Cong. LaHood, Cong. Stenholm, Cong. Condit, Cong.
    Peterson, Cong. Minge, Cong. Baldacci, and Cong. Roberts,
    Chairman.
        Nays: Cong. de la Garza, Cong. Volkmer, Cong. Dooley, Cong.
    Clayton, Cong. Hilliard, Cong. Pomeroy, Cong. Thurman, Cong.
    Bishop, Cong. Thompson, Cong. Farr, and Cong. Pastor.
        Present: Cong. Hostettler.
        Not voting: Cong. Emerson, Cong. Combest, Cong. Chenoweth,
    Cong. Brown, Cong. Rose, Cong. Johnson, Cong. Holden, and Cong.
    Baesler.

              Budget Act Compliance (Section 308 and Section 403)

        The provisions of clause 2(l)(3)(B) of rule XI of the Rules
    of the House of Representatives and section 308(a) of the
    Congressional Budget Act of 1974 (relating to estimates of new
    budget authority, new spending authority, or new credit
    authority, or increased or decreased revenues or tax
    expenditures) are not considered applicable. The estimate and
    comparison required to be prepared by the Director of the
    Congressional Budget Office under clause 2(l)(3)(C) of rule XI
    of the Rules of the House of Representatives and section 403 of
    the Congressional Budget Act of 1974 were not received by the
    Committee prior to the filing of this report and is not
    included herein.
        However, on March 7, 1996, and without objection, the
    Committee on Agriculture received permission to file a
    supplemental report containing such estimate by a unanimous
    consent request obtained on the House Floor. It is the
    Committee's intent to include in a supplemental report the
    Congressional Budget Office cost estimate on H.R. 2202, as
    amended.

                         Inflationary Impact Statement

        Pursuant to clause 2(l)(4) of rule XI of the Rules of the
    House of Representatives, the Committee estimates that
    enactment of H.R. 2202, as amended, will have no inflationary
    impact on the national economy.

                              Oversight Statement

        No summary of oversight findings and recommendations made
    by the Committee on Government Reform and Oversight under
    clause 2(l)(3)(D) of rule XI of the Rules of the House of
    Representatives was available to the Committee with reference
    to the subject matter specifically addressed by H.R. 2202, as
    amended.
        No specific oversight activities other than the hearings
    detailed in this report were conducted by the Committee within
    the definition of clause 2(b)(1) of rule X of the Rules of the
    House of Representatives.

             Changes in Existing Law Made by the Bill, as Reported

      The bill was referred to this committee for consideration of
    such provisions of the bill as fall within the jurisdiction of
    this committee pursuant to clause 1(a) of Rule X of the Rules
    of the House of Representatives. The changes made to existing
    law by the amendment reported by the Committee on the Judiciary
    are shown in the report filed by that committee (Rept. 104-469,
    Part 1).
      For the information of the Members of the House of
    Representatives, changes made by the amendment made by this
    committee to existing law are shown as follows (existing law
    proposed to be omitted is enclosed in black brackets, new
    matter is printed in italic, existing law in which no change is
    proposed is shown in roman):

                        IMMIGRATION AND NATIONALITY ACT

                                TABLE OF CONTENTS

         * * * * * * *

                              Title II--Immigration

         * * * * * * *

      chapter 2--qualifications for admission of aliens; travel control of
                               citizens and aliens

    Sec. 211.  Documentary requirements.
    Sec. 212.  General classes of aliens ineligible to receive visas and
              excluded from admission; waivers of inadmissibility.
    Sec. 213.  Admission of certain aliens on giving bond.
         * * * * * * *
    Sec.  218A.  Alternative agricultural worker program.
              * * * * * * *

                                TITLE I--GENERAL

                                  definitions

      Section 101. (a) As used in this Act--
      (1)  * * *
              * * * * * * *
      (15) The term ``immigrant'' means every alien except an alien
    who is within one of the following classes of nonimmigrant
    aliens--
              (A)  * * *
              * * * * * * *
              (H) an alien (i)(a) who is coming temporarily to the
            United States to perform services as a registered
            nurse, who meets the qualifications described in
            section 212(m)(1), and with respect to whom the
            Secretary of Labor determines and certifies to the
            Attorney General that an unexpired attestation is on
            file and in effect under section 212(m)(2) for each
            facility (which facility shall include the petitioner
            and each worksite, other than a private household
            worksite, if the worksite is not the alien's employer
            or controlled by the employer) for which the alien will
            perform the services, or (b) subject to section
            212(j)(2), who is coming temporarily to the United
            States to perform services (other than services
            described in subclause (a) during the period in which
            such subclause applies and other than services
            described in subclause (ii)(a) or in subparagraph (O)
            or (P)) in a specialty occupation described in section
            214(i)(1) or as a fashion model, who meets the
            requirements for the occupation specified in section
            214(i)(2) or, in the case of a fashion model, is of
            distinguished merit and ability, and with respect to
            whom the Secretary of Labor determines and certifies to
            the Attorney General that the intending employer has
            filed with the Secretary an application under section
            212(n)(1); or (ii)(a) having a residence in a foreign
            country which he has no intention of abandoning who is
            coming temporarily to the United States to perform
            agricultural labor or services, as defined by the
            Secretary of Labor in regulations and including
            agricultural labor defined in section 3121(g) of the
            Internal Revenue Code of 1954 and agriculture as
            defined in section 3(f) of the Fair Labor Standards Act
            of 1938 (29 U.S.C. 203(f)), of a temporary or seasonal
            nature, [or (b)] (b) having a residence in a foreign
            country which he has no intention of abandoning who is
            coming temporarily to the United States pursuant to
            section 218A to perform such agricultural labor or
            services of a temporary or seasonal nature, or (c)
            having a residence in a foreign country which he has no
            intention of abandoning who is coming temporarily to
            the United States to perform other temporary service or
            labor if unemployed persons capable of performing such
            service or labor cannot be found in this country, but
            this clause shall not apply to graduates of medical
            schools coming to the United States to perform services
            as members of the medical profession; or (iii) having a
            residence in a foreign country which he has no
            intention of abandoning who is coming temporarily to
            the United States as a trainee, other than to receive
            graduate medical education or training, in a training
            program that is not designed primarily to provide
            productive employment; and the alien spouse and minor
            children of any such alien [specified in this
            paragraph] specified in this subparagraph (other than
            in clause (ii)(b)) if accompanying him or following to
            join him;
              * * * * * * *

                             TITLE II--IMMIGRATION

              * * * * * * *

     Chapter 2--Qualifications for Admission of Aliens; Travel Control of
                              Citizens and Aliens

              * * * * * * *

                           admission of nonimmigrants

          Sec. 214. (a)  * * *
              * * * * * * *
          (c)(1)  * * *
              * * * * * * *
          (5)(A) In the case of an alien who is provided
    nonimmigrant status under section 101(a)(15)(H)(i)(b) or
    101(a)(15)(H)(ii)[(b)](c) and who is dismissed from employment
    by the employer before the end of the period of authorized
    admission, the employer shall be liable for the reasonable
    costs of return transportation of the alien abroad.
              * * * * * * *
          (g)(1) The total number of aliens who may be issued visas
    or otherwise provided nonimmigrant status during any fiscal
    year (beginning with fiscal year 1992)--
              (A) under section 101(a)(15)(H)(i)(b) may not exceed
            65,000, or
              (B) under section 101(a)(15)(H)(ii)[(b)](c) may not
            exceed 66,000.
              * * * * * * *
      (l)(1) An alien may not be admitted (or provided status) as a
    temporary worker under section 101(a)(15)(H)(ii)(b) if the
    alien (after the date of the enactment of this subsection) has
    been convicted of owning (or knowingly operating) a motor
    vehicle in the United States without having liability insurance
    that meets applicable insurance requirements of the State in
    which the alien is employed or in which the vehicle is
    registered.
      (2) An alien who is admitted or provided status as such a
    worker who is so convicted shall be considered, on and after
    the date of the conviction and for purposes of section
    237(a)(1)(C), to have failed to comply with a condition for the
    maintenance of status under section 101(a)(15)(H)(ii)(b).
              * * * * * * *

               alternative agricultural temporary worker program

      Sec. 218A. (a) Condition for the Employment of H-2B Aliens.--
              (1) In general.--No alien may be admitted or provided
            status as an H-2B alien (as defined in subsection
            (n)(4)) unless--
                      (A) the employment of the alien is covered by
                    a currently valid labor condition attestation
                    which--
                              (i) is filed by the employer, or by
                            an association on behalf of the
                            employer, for the occupation in which
                            the alien will be employed;
                              (ii) has been accepted by the
                            qualified State employment security
                            agency having jurisdiction over the
                            area of intended employment; and
                              (iii) states each of the items
                            described in paragraph (2) and includes
                            information identifying the employer or
                            association and agricultural job
                            opportunities involved; and
                      (B) the employer is not disqualified from
                    employing H-2B aliens pursuant to subsection
                    (g).
              (2) Contents of labor condition attestation.--Each
            labor condition attestation filed by or on behalf of,
            an employer shall include the following:
                      (A) Wage rate.--The employer will pay H-2B
                    aliens and all other workers in the occupation
                    not less than the prevailing wage for similarly
                    employed workers in the area of employment, and
                    not less than the applicable Federal, State or
                    local statutory minimum wage.
                      (B) Working conditions.--The employment of H-
                    2B aliens will not adversely affect the working
                    conditions with respect to housing and
                    transportation of similarly employed workers in
                    the area of employment.
                      (C) Limitation on employment.--An H-2B alien
                    will not be employed in any job opportunity
                    which is not temporary or seasonal, and will
                    not be employed by the employer in any job
                    opportunity for more than 10 months in any 12-
                    consecutive-month period.
                      (D) No labor dispute.--No H-2B alien will be
                    employed in any job opportunity which is vacant
                    because its former occupant is involved in a
                    strike, lockout or work stoppage in the course
                    of a labor dispute in the occupation at the
                    place of employment.
                      (E) Notice.--The employer, at the time of
                    filing the attestation, has provided notice of
                    the attestation to workers employed in the
                    occupation in which H-2B aliens will be
                    employed.
                       (F) Job orders.--The employer will file one
                    or more job orders for the occupation (or
                    occupations) covered by the attestation with
                    the qualified State employment security agency
                    no later than the day on which the employer
                    first employs any H-2B aliens in the
                    occupation.
                      (G) Preference to domestic workers.--The
                    employer will give preference to able, willing
                    and qualified United States workers who apply
                    to the employer and are available at the time
                    and place needed, for the first 25 days after
                    the filing of the job order in an occupation or
                    until 5 days before the date employment of
                    workers in the occupation begins, whichever
                    occurs later.
              (3) Establishment as pilot program; restriction of
            admissions to pilot program period.--
                      (A) In general.--The program under this
                    section is deemed to be a pilot program and no
                    alien may be admitted or provided status as an
                    H-2B alien under this section except during the
                    pilot program period specified in subparagraph
                    (B).
                      (B) Pilot program period.--
                              (i) In general.--Subject to clause
                            (ii), the pilot program period under
                            this subparagraph is the period (ending
                            on October 1, 1999) during which the
                            employment eligibility verification
                            system is in effect under section
                            274A(b)(7) (as amended by the
                            Immigration in the National Interest
                            Act of 1995).
                              (ii) Consideration of extension.--If
                            Congress extends such verification
                            system, Congress shall also extend the
                            pilot program period under this
                            subparagraph for the same period of
                            time.
                      (C) Annual reports.--The Comptroller General
                    shall submit to Congress annual reports on the
                    operation of the pilot program under this
                    section during the pilot program period. Such
                    reports shall include an assessment of the
                    program and of the need for foreign workers to
                    perform temporary agricultural employment in
                    the United States.
              (4) Limitations on number of visas.--
                      (A) In general.--In no case may the number of
                    aliens who are admitted or provided status as
                    an H-2B alien in a fiscal year exceed the
                    numerical limitation specified under
                    subparagraph (B) for that fiscal year.
                      (B) Numerical limitation.--The numerical
                    limitation specified in this subparagraph for--
                              (i) the first fiscal year in which
                            this section is applied is 250,000; and
                              (ii) any subsequent fiscal year is
                            the numerical limitation specified in
                            this subparagraph for the previous
                            fiscal year decreased by 25,000.
      (b) Filing a Labor Condition Attestation.--
              (1) Filing by employers--Any employer in the United
            States is eligible to file a labor condition
            attestation.
              (2) Filing by associations on behalf of employer
            members.--An agricultural association may file a labor
            condition attestation as an agent on behalf of its
            members. Such an attestation filed by an agricultural
            association acting as an agent for its members, when
            accepted, shall apply to those employer members of the
            association that the association certifies to the
            qualified State employment security agency are members
            of the association and have agreed in writing to comply
            with the requirements of this section.
              (3) Period of validity.--A labor condition
            attestation is valid from the date on which it is
            accepted by the qualified State employment security
            agency for the period of time requested by the
            employer, but not to exceed 12 months.
              (4) Where to file.--A labor condition attestation
            shall be filed with such agency having jurisdiction
            over the area of intended employment of the workers
            covered by the attestation. If an employer, or the
            members of an association of employers, will be
            employing workers in an area or areas covered by more
            than one such agency, the attestation shall be filed
            with each such agency having jurisdiction over an area
            where the workers will be employed.
              (5) Deadline for filing.--An employer may file a
            labor condition attestation at any time up to 12 months
            prior to the date of the employer's anticipated need
            for workers in the occupation (or occupations) covered
            by the attestation.
              (6) Filing for multiple occupations.--A labor
            condition attestation may be filed for one or more
            occupations and cover one or more periods of
            employment.
              (7) Maintaining required documentation.--
                      (A) By employers.--Each employer covered by
                    an accepted labor condition attestation must
                    maintain a file of the documentation required
                    in subsection (c) for each occupation included
                    in an accepted attestation covering the
                    employer. The documentation shall be retained
                    for a period of one year following the
                    expiration of an accepted attestation. The
                    employer shall make the documentation available
                    to representatives of the Secretary during
                    normal business hours.
                      (B) By associations.--In complying with
                    subparagraph (A), documentation maintained by
                    an association filing a labor condition
                    attestation on behalf of an employer shall be
                    deemed to be maintained by the employer.
              (8) Withdrawal.--
                      (A) Compliance with attestation
                    obligations.--An employer covered by an
                    accepted labor condition attestation for an
                    occupation shall comply with the terms and
                    conditions of the attestation from the date the
                    attestation is accepted and continuing
                    throughout the period any persons are employed
                    in an occupation covered by such an accepted
                    attestation, whether or not H-2B aliens are
                    employed in the occupation, unless the
                    attestation is withdrawn.
                      (B) Termination of obligations.--An employer
                    may withdraw a labor condition attestation in
                    total, or with respect to a particular
                    occupation covered by the attestation. An
                    association may withdraw such an attestation
                    with respect to one or more of its members. To
                    withdraw an attestation the employer or
                    association must notify in writing the
                    qualified State employment security agency
                    office with which the attestation was filed of
                    the withdrawal of the attestation. An employer
                    who withdraws an attestation, or on whose
                    behalf an attestation is withdrawn by an
                    association, is relieved of the obligations
                    undertaken in the attestation with respect to
                    the occupation (or occupations) with respect to
                    which the attestation was withdrawn, upon
                    acknowledgement by the appropriate qualified
                    State employment security agency of receipt of
                    the withdrawal notice. An attestation may not
                    be withdrawn with respect to any occupation
                    while any H-2B aliens covered by that
                    attestation are employed in the occupation.
                      (C) Obligations under other statutes.--Any
                    obligation incurred by the employer under any
                    other law or regulation as a result of
                    recruitment of United States workers under an
                    offer of terms and conditions of employment
                    required by the H-2B program is unaffected by
                    withdrawal of a labor condition attestation.
      (c) Employer Responsibilities and Requirements For Employing
    H-2B Nonimmigrants.--
              (1) Requirement to pay the prevailing wage.--
                      (A) Effect of the attestation.--Employers
                    shall pay each worker in an occupation covered
                    by an accepted labor condition attestation at
                    least the prevailing wage in the occupation in
                    the area of intended employment. The preceding
                    sentence does not require employers to pay all
                    workers in the occupation the same wage. The
                    employer may, in the sole discretion of the
                    employer, maintain pay differentials based on
                    experience, tenure with the employer, skill, or
                    any other work-related factor, if the
                    differential is not based on a criterion for
                    which discrimination is prohibited by the law
                    and all workers in the covered occupation
                    receive at least the prevailing wage.
                      (B) Payment of qualified state employment
                    security agency determined wage sufficient.--
                    The employer may request and obtain a
                    prevailing wage determination from the
                    qualified State employment security agency. If
                    the employer requests such a determination, and
                    pays the wage determined, such payment shall be
                    considered sufficient to meet the requirement
                    of this paragraph if the H-2B workers--
                              (i) are employed in the occupation
                            for which the employer possesses an
                            accepted labor condition attestation,
                            and for which the employer or
                            association possesses a prevailing wage
                            determination by the qualified State
                            employment security agency, and
                              (ii) are being paid at least the
                            prevailing wage so determined.
                      (C) Reliance on wage survey.--In lieu of the
                    procedures of subparagraph (B), an employer may
                    rely on other information, such as an employer
                    generated prevailing wage survey and
                    determination, which meets criteria specified
                    by the Secretary by regulation. In the event of
                    a complaint that the employer has failed to pay
                    the required wage, the Secretary shall
                    investigate to determine if the information
                    upon which the employer relied complied with
                    the criteria for prevailing wage
                    determinations.
                      (D) Alternate methods of payment permitted.--
                              (i) In general.--A prevailing wage
                            may be expressed as an hourly wage, a
                            piece rate, a task rate (described in
                            clause (ii)), or other incentive pay
                            system, including a group rate
                            (described in clause (iii)). The
                            requirement to pay at least the
                            prevailing wage in the occupation and
                            area of intended employment does not
                            require an employer to pay by the
                            method of pay in which the prevailing
                            rate is expressed. However, if the
                            employer adopts a method of pay other
                            than the prevailing rate, the burden of
                            proof is on the employer to demonstrate
                            that the employer's method of pay is
                            designed to produce earnings equivalent
                            to the earnings that would result from
                            payment of the prevailing rate.
                              (ii) Task rate.--For purposes of this
                            subparagraph, a task rate is an
                            incentive payment based on a unit of
                            work performed such that the incentive
                            rate varies with the level of effort
                            required to perform individual units of
                            work.
                              (iii) Group rate.--For purposes of
                            this subparagraph, a group rate is an
                            incentive payment system in which the
                            payment is shared among a group of
                            workers working together to perform the
                            task.
                      (E) Required documentation.--The employer or
                    association shall document compliance with this
                    paragraph by retaining on file the employer or
                    association's request for a determination by a
                    qualified State employment security agency and
                    the prevailing wage determination received from
                    such agency or other information upon which the
                    employer or association relied to assure
                    compliance with the prevailing wage
                    requirement.
              (2) Requirement to provide housing and
            transportation.--
                      (A) Effect of the attestation.--The
                    employment of H-2B aliens shall not adversely
                    affect the working conditions of United States
                    workers similarly employed in the area of
                    intended employment. The employer's obligation
                    not to adversely affect working conditions
                    shall continue for the duration of the period
                    of employment by the employer of any H-2B
                    aliens in the occupation and area of intended
                    employment. An employer will be deemed to be in
                    compliance with this attestation if the
                    employer offers at least the benefits required
                    by subparagraphs (B) through (D). The previous
                    sentence does not require an employer to offer
                    more than such benefits.
                      (B) Housing required.--
                              (i) Housing offer.--The employer must
                            offer to H-2B aliens and United States
                            workers recruited from beyond normal
                            recruiting distance housing, or a
                            housing allowance, if it is prevailing
                            practice in the occupation and area of
                            intended employment to offer housing or
                            a housing allowance to workers who are
                            recruited from beyond normal commuting
                            distance.
                              (ii) Housing standards.--If the
                            employer offers housing to such
                            workers, the housing shall meet (at the
                            option of the employer) applicable
                            Federal farm labor housing standards or
                            applicable local or State standards for
                            rental, public accommodation, or other
                            substantially similar class of
                            habitation.
                              (iii) Charges for housing.--An
                            employer who offers housing to such
                            workers may charge an amount equal to
                            the fair market value (but not greater
                            than the employer's actual cost) for
                            utilities and maintenance, or such
                            lesser amount as permitted by law.
                              (iv) Housing allowance as
                            alternative.--In lieu of offering
                            housing to such workers, at the
                            employer's sole discretion on an
                            individual basis, the employer may
                            provide a reasonable housing allowance.
                            An employer who offers a housing
                            allowance to such a worker under this
                            subparagraph shall not be deemed to be
                            a housing provider under section 203 of
                            the Migrant and Seasonal Agricultural
                            Worker Protection Act (29 U.S.C. 1823)
                            merely by virtue of providing such
                            housing allowance.
                              (v) Security deposit.--The
                            requirement, if any, to offer housing
                            to such a worker under this
                            subparagraph shall not preclude an
                            employer from requiring a reasonable
                            deposit to protect against gross
                            negligence or willful destruction of
                            property, as a condition for providing
                            such housing.
                              (vi) Damages.--An employer who offers
                            housing to such a worker shall not be
                            precluded from requiring a worker found
                            to have been responsible for damage to
                            such housing which is not the result of
                            normal wear and tear related to
                            habitation to reimburse the employer
                            for the reasonable cost of repair of
                            such damage.
                      (C) Transportation.--If the employer provides
                    transportation arrangements or assistance to H-
                    2B aliens, the employer must offer to provide
                    the same transportation arrangements or
                    assistance (generally comparable in expense and
                    scope) for other individuals employed by the
                    employer in the occupation at the place of
                    employment who were recruited from beyond
                    normal commuting distance.
                      (D) Workers' compensation.--If the employment
                    covered by a labor condition attestation is not
                    covered by the State workers' compensation law,
                    the employer must provide, at no cost to the
                    worker, insurance covering injury and disease
                    arising out of and in the course of the
                    workers' employment which will provide benefits
                    at least equal to those provided under the
                    State workers' compensation law for comparable
                    employment.
                      (E) Required documentation.--
                              (i) Housing and transportation.--No
                            specific documentation is required to
                            be maintained to evidence compliance
                            with the requirements of subparagraphs
                            (B) and (C). In the event of a
                            complaint alleging a failure to comply
                            with such a requirement, the burden of
                            proof shall be on the employer to show
                            that the employer offered the required
                            benefit to the complainant, or that the
                            employer was not required by the terms
                            of this paragraph to offer such benefit
                            to the complainant.
                              (ii) Workers' compensation.--The
                            employer shall maintain copies of
                            certificates of insurance evidencing
                            compliance with subparagraph (D)
                            throughout the period of validity of
                            the labor condition attestation.
              (3) Requirement to employ aliens in temporary or
            seasonal agricultural job opportunities.--
                      (A) Limitations.--
                              (i) In general.--The employer may
                            employ H-2B aliens only in agricultural
                            employment which is temporary or
                            seasonal.
                              (ii) Seasonal basis.--For purposes of
                            this section, labor is performed on a
                            seasonal basis where, ordinarily, the
                            employment pertains to or is of the
                            kind exclusively performed at certain
                            seasons or periods of the year and
                            which, from its nature, may not be
                            continuous or carried on throughout the
                            year.
                              (iii) Temporary basis.--For purposes
                            of this section, a worker is employed
                            on a temporary basis where the
                            employment is intended not to exceed 10
                            months.
                      (B) Required documentation.--No specific
                    documentation is required to demonstrate
                    compliance with the requirement of subparagraph
                    (A). In the event of a complaint, the burden of
                    proof shall fall on the employer to show that
                    the employment meets such requirement.
              (4) Requirement not to employ aliens in job
            opportunities vacant because of a labor dispute.--
                      (A) In general.--No H-2B alien may be
                    employed in any job opportunity which is vacant
                    because its former occupant is involved in a
                    strike, lockout, or work stoppage in the course
                    of a labor dispute in the occupation at the
                    place of employment.
                      (B) Required documentation.--No specific
                    documentation is required to demonstrate
                    compliance with the requirement of subparagraph
                    (A). In the event of a complaint, the burden of
                    proof shall fall on the employer to show that
                    the job opportunity in which the H-2B alien was
                    employed was not vacant because the former
                    occupant was on strike, locked out, or
                    participating in a work stoppage in the course
                    of a labor dispute in the occupation at the
                    place of employment.
              (5) Notice of filing of attestation and supporting
            documentation.--
                      (A) In general.--The employer shall--
                              (i) provide notice of the filing of a
                            labor condition attestation to the
                            appropriate certified bargaining agent
                            (if any) which represents workers of
                            the employer in the occupation (or
                            occupations) at the place of employment
                            covered by the attestation; or
                              (ii) in the case where no appropriate
                            bargaining agent exists, post notice of
                            the filing of such an attestation in at
                            least two conspicuous locations where
                            applications for employment are
                            accepted.
                      (B) Period for posting.--The requirement for
                    a posting under subparagraph (A)(ii) begins on
                    the day the attestation is filed, and continues
                    through the period during which the employer's
                    job order is required to remain active pursuant
                    to paragraph (6)(A).
                      (C) Required documentation.--The employer
                    shall maintain a copy of the notice provided to
                    the bargaining agent (if any), together with
                    evidence that the notice was provided (such as
                    a signed receipt of evidence of attempt to send
                    the notice by certified or registered mail). In
                    the case where no appropriate certified
                    bargaining agent exists, the employer shall
                    retain a copy of the posted notice, together
                    with information as to the dates and locations
                    where the notice was displayed.
              (6) Requirement to file a job order.--
                      (A) Effect of the attestation.--The employer,
                    or an association acting as agent for its
                    members, shall file the information necessary
                    to complete a local job order for each
                    occupation covered by an accepted labor
                    condition attestation with the appropriate
                    local office of the qualified State employment
                    security agency having jurisdiction over the
                    area of intended employment, or with the State
                    office of such an agency if workers will be
                    employed in an area within the jurisdiction of
                    more than one local office of such an agency.
                    The job orders shall remain on file for 25
                    calendar days or until 5 calendar days before
                    the anticipated date of need for workers in the
                    occupation covered by the job order, whichever
                    occurs later. The job order shall provide at
                    least the minimum terms and conditions of
                    employment required for participation in the H-
                    2B program.
                      (B) Deadline for filing.--A job order shall
                    be filed under subparagraph (A) no later than
                    the date on which the employer files a petition
                    with the Attorney General for admission or
                    extension of stay for aliens to be employed in
                    the occupation for which the order is filed.
                      (C) Required documentation.--The office of
                    the qualified State employment security agency
                    which the employer or association provides with
                    information necessary to file a local job order
                    shall provide the employer with evidence that
                    the information was provided in a timely manner
                    as required by this paragraph, and the employer
                    or association shall retain such evidence for
                    each occupation in which H-2B aliens are
                    employed.
              (7) Requirement to give preference to qualified
            united states workers.--
                      (A) Filing 30 days or more before date of
                    need.--If a job order is filed 30 days or more
                    before the anticipated date of need for workers
                    in an occupation covered by a labor condition
                    attestation and for which the job order has
                    been filed, the employer shall offer to employ
                    able, willing, and qualified United States
                    workers who apply to the employer and who will
                    be available at the time and place needed for
                    the job opportunities covered by the
                    attestation until 5 calendar days before the
                    anticipated date of need for workers in the
                    occupation, or until the employer's job
                    opportunities in the occupation are filled with
                    qualified United States workers, if that occurs
                    more than 5 days before the anticipated date of
                    need for workers in the occupation.
                      (B) Filling fewer than 30 days before date of
                    need.--If a job order is filed fewer than 30
                    days before the anticipated date of need for
                    workers in an occupation covered by such an
                    attestation and for which a job order has been
                    filed, the employer shall offer to employ able,
                    willing, and qualified United States workers
                    who are or will be available at the time and
                    place needed during the first 25 days after the
                    job order is filed or until the employer's job
                    opportunities in the occupation are filled with
                    United States workers, regardless of whether
                    any of the job opportunities may already be
                    occupied by H-2B aliens.
                      (C) Filing vacancies.--An employer may fill a
                    job opportunity in an occupation covered by an
                    accepted attestation which remains or becomes
                    vacant after expiration of the required
                    preference period specified in subparagraph (A)
                    or (B) of paragraph (6) without regard to such
                    preference.
                      (D) Job-related requirements.--No employer
                    shall be required to initially employ a worker
                    who fails to meet lawful job-related employment
                    criteria, nor to continue the employment of a
                    worker who fails to meet lawful job-related
                    standards of conduct and performance, including
                    failure to meet minimum productivity standards
                    after a 3-day break-in period.
                      (E) Required documentation.--No specific
                    documentation is required to demonstrate
                    compliance with the requirements of this
                    paragraph. In the event of a complaint, the
                    burden of proof shall be on the complainant to
                    show that the complainant applied for the job
                    and was available at the time and place needed.
                    If the complainant makes such a showing, the
                    burden of proof shall be on the employer to
                    show that the complainant was not qualified or
                    that the preference period had expired.
              (8) Requirements of notice of certain breaks in
            employment.--
                      (A) In general.--The employer (or an
                    association in relation to an H-2B alien) shall
                    notify the Service within 7 days if an H-2B
                    alien prematurely abandons the alien's
                    employment.
                      (B) Out-of-status.--An H-2B alien who
                    abandons the alien's employment shall be
                    considered to have failed to maintain
                    nonimmigrant status as an alien described in
                    section 101(a)(15)(H)(ii)(b) and shall leave
                    the United States or be subject to removal
                    under section 237(a)(1)(C)(i).
       (d) Acceptance By Qualified State Employment Security
    Agency.--The qualified State employment security agency shall
    review labor condition attestations submitted by employers or
    associations only for completeness and obvious inaccuracies.
    Unless such an agency finds that the application is incomplete
    or obviously inaccurate, the agency shall accept the
    attestation within 7 days of the date of filing of the
    attestation, and return a copy to the applicant marked
    ``accepted''.
      (e) Public Registry.--The Secretary shall maintain a registry
    of all accepted labor condition attestations and make such
    registry available for public inspection.
      (f) Responsibilities of the Qualified State Employment
    Security Agencies.--
              (1) Dissemination of labor market information.--The
            Secretary shall direct qualified State employment
            security agencies to disseminate nonemployer-specific
            information about potential labor needs based on
            accepted attestations filed by employers. Such
            dissemination shall be separate from the clearance of
            job orders through the Interstate and Intrastate
            Clearance Systems, and shall create no obligations for
            employers except as provided in this section.
              (2) Referral of workers on qualified state employment
            security agency job orders.--Such agencies holding job
            orders filed by employers covered by approved labor
            condition attestations shall be authorized to refer any
            able, willing, and qualified eligible job applicant who
            will be available at the time and place needed and who
            is authorized to work in the united States, including
            H-2B aliens who are seeking additional work in the
            United States and whose eligibility to remain in the
            United States pursuant to subsection (h) has not
            expired, on job orders filed by holders of accepted
            attestations.
      (g) Enforcement and Penalties.--
              (1) Enforcement authority.--
                      (A) Investigation of complaints.--The
                    Secretary shall establish a process for the
                    receipt, investigation, and disposition of
                    complaints respecting an employer's failure to
                    meet a condition specified in subsection (a) or
                    an employer's misrepresentation of material
                    facts in such an application. Complaints may be
                    filed by any aggrieved person or organizations
                    (including bargaining representatives). No
                    investigation or hearing shall be conducted on
                    a complaint concerning such a failure or
                    misrepresentation unless the complaint was
                    filed not later than 12 months after the date
                    of the failure or misrepresentation,
                    respectively. The Secretary shall conduct an
                    investigation under this subparagraph if there
                    is reasonable cause to believe that such a
                    failure or misrepresentation has occurred.
                      (B) Written notice of findings and
                    opportunity for appeal.--After an investigation
                    has been conducted, the Secretary shall issue a
                    written determination as to whether or not any
                    violation described in paragraph (2) has been
                    committed. The Secretary's determination shall
                    be served on the complainant and the employer,
                    and shall provide an opportunity for an appeal
                    of the Secretary's decision to an
                    administrative law judge, who may conduct a de
                    novo hearing.
              (2) Remedies.--
                      (A) Back wages.--Upon a final determination
                    that the employer has failed to pay wages as
                    required under this section, the Secretary may
                    assess payment of back wages due to any United
                    States worker or H-2B alien employed by the
                    employer in the specific employment in
                    question. The back wages shall be equal to the
                    difference between the amount that should have
                    been paid and the amount that actually was paid
                    to such worker.
                      (B) Failure to pay wages.--Upon a final
                    determination that the employer has failed to
                    pay the wages required under this section, the
                    Secretary may assess a civil money penalty up
                    to $1,000 for each failure, and may recommend
                    to the Attorney General the disqualification of
                    the employer from the employment of H-2B aliens
                    for a period of time determined by the
                    Secretary not to exceed 1 year.
                      (C) Other violations.--If the Secretary, as a
                    result of an investigation pursuant to a
                    complaint, determines that an employer covered
                    by an accepted labor condition attestation
                    has--
                              (i) filed an attestation which
                            misrepresents a material fact; or
                              (ii) failed to meet a condition
                            specified in subsection (a),
                    the Secretary may assess a civil money penalty
                    not to exceed $1,000 for each violation. In
                    determining the amount of civil money penalty
                    to be assessed, the Secretary shall consider
                    the seriousness of the violation, the good
                    faith of the employer, the size of the business
                    of the employer being charged, the history of
                    previous violations by the employer, whether
                    the employer obtained a financial gain from the
                    violation, whether the violation was willful,
                    and other relevant factors.
                      (D) Program disqualification.--
                              (i) 3-years for second violation.--
                            Upon a second final determination that
                            an employer has failed to pay the wages
                            required under this section, the
                            Secretary shall report such
                            determination to the Attorney General
                            and the Attorney General shall
                            disqualify the employer from the
                            employment of H-2B aliens for a period
                            of 3 years.
                              (ii) Permanent for third violation.--
                            Upon a third final determination that
                            an employer has failed to pay the wages
                            required under this section, the
                            Secretary shall report such
                            determination to the Attorney General
                            and the Attorney General shall
                            disqualify the employer from any
                            subsequent employment of H-2B aliens.
              (3) Role of associations.--
                      (A) Violation by a member of an
                    association.--An employer on whose behalf a
                    labor condition attestation is filed by an
                    association acting as its agent is fully
                    responsible for such attestation, and for
                    complying with the terms and conditions of this
                    section, as though the employer had filed the
                    attestation itself. If such an employer is
                    determined to have violated a requirement of
                    this section, the penalty for such violation
                    shall be assessed against the employer who
                    committed the violation and not against the
                    association or other members of the
                    association.
                      (B) Violation by an association acting as an
                    employer.--If an association filing a labor
                    condition attestation on its own behalf as an
                    employer is determined to have committed a
                    violation under this subsection which results
                    in disqualification from the program under
                    paragraph (2)(D), no individual member of such
                    association may be the beneficiary of the
                    services of an H-2B alien in an occupation in
                    which such alien was employed by the
                    association during the period such
                    disqualification is in effect, unless such
                    member files a labor condition attestation as
                    an individual employer or such an attestation
                    is filed on the employer's behalf by an
                    association with which the employer has an
                    agreement that the employer will comply with
                    the requirements of this section.
      (h) Procedure for Admission or Extension of H-2B Aliens.--
              (1) Aliens who are outside the united states.--
                      (A) Petitioning for admission.--An employer
                    or an association acting as agent for its
                    members who seeks the admission into the United
                    States of H-2B aliens may file a petition with
                    the District Director of the Service having
                    jurisdiction over the location where the aliens
                    will be employed. The petition shall be
                    accompanied by an accepted and currently valid
                    labor condition attestation covering the
                    petitioner. The petition may be for named or
                    unnamed individual or multiple beneficiaries.
                      (B) Expedited adjudication by district
                    director.--If an employer's petition for
                    admission of H-2B aliens is correctly filled
                    out, and the employer is not ineligible to
                    employ H-2B aliens, the District Director (or
                    the Director's designee) shall approve the
                    petition within 3 working days of receipt of
                    the petition and accepted labor condition
                    attestation and immediately (by fax, cable, or
                    other means assuring expedited delivery)
                    transmit a copy of the approved petition to the
                    petitioner and to the appropriate immigration
                    officer at the port of entry or United States
                    consulate (as the case may be) where the
                    petitioner has indicated that the alien
                    beneficiary (or beneficiaries) will apply for a
                    visa or admission to the United States.
                      (C) Unnamed beneficiaries selected by
                    petitioner.--The petitioning employer or
                    association or its representative shall approve
                    the issuance of visas to beneficiaries who are
                    unnamed on a petition for admission granted to
                    the employer or association.
                      (D) Criteria for admissibility.--
                              (i) In general.--An alien shall be
                            admissible under this section if the
                            alien is otherwise admissible under
                            this Act and the alien is not debarred
                            pursuant to the provisions of clause
                            (ii).
                              (ii) Disqualification.--An alien
                            shall be debarred from admission or
                            being provided status as an H-2B alien
                            under this section if the alien has, at
                            any time--
                                      (I) violated a material
                                    provision of this section,
                                    including the requirement to
                                    promptly depart the United
                                    States when the alien's
                                    authorized period of admission
                                    under this section has expired;
                                    or
                                       (II) has otherwise violated
                                    a term or condition of
                                    admission to the United States
                                    as a nonimmigrant, including
                                    overstaying the period of
                                    authorized admission as such a
                                    nonimmigrant.
                      (E) Period of admission.--The alien shall be
                    admitted for the period requested by the
                    petitioner not to exceed 10 months, or the
                    remaining validity period of the petitioner's
                    approved labor condition attestation, whichever
                    is shorter, plus an additional period of 14
                    days, during which the alien shall seek
                    authorized employment in the United States.
                    During the 14-day period following the
                    expiration of the alien's work authorization,
                    the alien is not authorized to be employed
                    unless the original petitioner or a subsequent
                    petitioner has filed an extension of stay on
                    behalf of the alien.
                      (F) Issuance of identification and employment
                    eligibility document.--
                              (i) In general.--The Attorney General
                            shall cause to be issued to each H-2B
                            alien a card in a form which is
                            resistant to counterfeiting and
                            tampering for the purpose of providing
                            proof of identity and employment
                            eligibility under section 274A.
                              (ii) Design of card.--Each card
                            issued pursuant to clause (i) shall be
                            designed in such a manner and contain a
                            photograph and other identifying
                            information (such as date of birth,
                            sex, and distinguishing marks) that
                            would allow an employer to determine
                            with reasonable certainty that the
                            bearer is not claiming the identity of
                            another individual, and shall--
                                      (I) contain a fingerprint or
                                    other biometric identifying
                                    data (or both);
                                      (II) specify the date of the
                                    aliens authorization as an H-2B
                                    alien;
                                      (III) specify the expiration
                                    date of the alien's work
                                    authorization; and
                                      (IV) specify the alien's
                                    admission number or alien file
                                    number.
              (2) Extension of stay.--
                      (A) Application for extension of stay.--If a
                    petitioner seeks to employ an H-2B alien
                    already in the United States, the petitioner
                    shall file an application for an extension of
                    stay. The application for extension of stay
                    shall be accompanied by a currently valid labor
                    condition attestation.
                      (B) Limitation on filing an application for
                    extension of stay.--An application may not be
                    filed for an extension of an alien's stay for a
                    period of more than 10 months, or later than a
                    date which is 2 years from the date of the
                    alien's last admission to the United States as
                    a H-2B alien, whichever occurs first. An
                    application for extension of stay may not be
                    filed during the pendency of an alien's
                    previous authorized period of admission, nor
                    after the alien's authorized stay in the United
                    States has expired.
                      (C) Work authorization upon filing an
                    application for extension of stay.--An employer
                    may begin employing an alien already in the
                    United States in H-2B status on the day the
                    employer files its application for extension of
                    stay with the Service. For the purpose of this
                    requirement, the term ``filing'' means sending
                    the application by certified mail via the
                    United States Postal Service, return receipt
                    requested, or delivered by guaranteed
                    commercial delivery which will provide the
                    employer with a documented acknowledgment of
                    receipt of the application. The employer shall
                    provide a copy of the employer's application
                    for extension of stay to the alien, who shall
                    keep the application with the alien's
                    identification and employment eligibility card
                    as evidence that the extension has been filed
                    and that the alien is authorized to work in the
                    United States. Upon approval of an application
                    for extension of stay, the Service shall
                    provide a new employment document to the alien
                    indicating a new validity date, after which the
                    alien is not required to retain a copy of the
                    application for extension of stay.
                      (D) Limitation on employment authorization of
                    h-2b aliens without valid identification and
                    employment eligibility card.--An expired
                    identification and employment eligibility card,
                    together with a copy of an application for
                    extension of stay, shall constitute a valid
                    work authorization document for a period of not
                    more than 60 days from the date of application
                    for the extension of stay, after which time
                    only a currently valid identification and
                    employment eligibility card shall be
                    acceptable.
              (3) Limitation on an individual's stay in h-2b
            status.--An alien having status as an H-2B alien may
            not have the status extended for a continuous period
            longer than 2 years unless the alien remains outside
            the United States for an uninterrupted period of 6
            months. An absence from the United States may break the
            continuity of the period for which an H-2B visa is
            valid. If the alien has resided in the United States 10
            months or less, an absence breaks the continuity of the
            period if its lasts for at least 2 months. If the alien
            has resided in the United States 10 months or more, an
            absence breaks the continuity of the period if it lasts
            for at least one-fifth the duration of the stay.
      (i) Trust Fund to Assure Worker Return.--
              (1) Establishment.--There is established in the
            Treasury of the United States a trust fund (in this
            section referred to as the ``Trust Fund'') for the
            purpose of providing a monetary incentive for H-2B
            aliens to return to their country of origin upon
            expiration of their visas under this section.
              (2) Withholding of wages; payment into the trust
            fund.--
                      (A) In general.--Employers of H-2B aliens
                    shall--
                              (i) withhold from the wages of their
                            H-2B alien workers an amount equivalent
                            to 25 percent of the wages of each H-2B
                            alien worker and pay such withheld
                            amount into the Trust Fund in
                            accordance paragraph (3); and
                              (ii) pay to the Trust Fund an amount
                            equivalent to the Federal tax on the
                            wages paid to H-2B aliens that the
                            employer would be obligated to pay
                            under the Federal Unemployment Tax Act
                            and the Federal Insurance Contributions
                            Act.
                    Amounts withheld under clause (i) shall be
                    maintained in such interest bearing account
                    with such a financial institution as the
                    Attorney General shall specify.
              (3) Distribution of funds.--The amounts paid into the
            Trust Fund and held pursuant to paragraph (2)(A)(i),
            and interest earned thereon, shall be paid by the
            Attorney General as follows:
                      (A) Reimbursement of emergency medical
                    expenses.--To reimburse valid claims for
                    reimbursement of emergency medical services
                    furnished to H-2B aliens, to the extent that
                    sufficient funds are not available on an annual
                    basis from the Trust Fund pursuant to
                    paragraphs (2)(A)(ii) and (4)(B).
                      (B) Payments to workers.--Amounts paid into
                    the Trust Fund on behalf of a worker, and
                    interest earned thereon, less a pro rata
                    reduction for any payments made pursuant to
                    subparagraph (A), shall be paid by the Attorney
                    General to the worker if--
                              (i) the worker applies to the
                            Attorney General (or the designee of
                            the Attorney General) for payment
                            within 30 days of the expiration of the
                            alien's last authorized stay in the
                            United States as a H-2B alien;
                              (ii) in such application the worker
                            establishes that the worker has
                            complied with the terms and conditions
                            of this section; and
                              (iii) in connection with the
                            application, the worker tenders the
                            identification and employment
                            authorization card issued to the worker
                            pursuant to subsection (h)(1)(F) and
                            establishes that the worker is
                            identified as the person to whom the
                            card was issued based on the biometric
                            identification information contained on
                            the card.
              (4) Administrative expenses and emergency medical
            expenses.--The amounts paid into the Trust Fund and
            held pursuant to paragraph (2)(A)(ii), and interest
            earned thereon, shall be paid by the Attorney General
            as follows:
                      (A) Administrative expenses.--First, to the
                    Attorney General, the Secretary of Labor, and
                    the Secretary of State in amounts equivalent to
                    the expenses incurred by such officials in the
                    administration of section 101(a)(15)(H)(ii)(b)
                    and this section.
                      (B) Reimbursement of emergency medical
                    services.--Any remaining amounts shall be
                    available on an annual basis to reimburse
                    hospitals for emergency medical services
                    furnished to H-2B aliens as provided in
                    subsection (k)(2).
              (5) Regulations.--The Attorney General shall
            prescribe regulations to carry out this subsection.
      (j) Investment of Trust Fund.--
              (1) In general.--It shall be the duty of the
            Secretary of the Treasury to invest such portion of the
            Trust Fund as is not, in the Secretary's judgement,
            required to meet current withdrawals. Such investments
            may be made only in interest-bearing obligations of the
            United States or in obligations guaranteed as to both
            principal and interest by the United States. For such
            purpose, such obligations may be acquired--
                      (A) on original issue at the price; or
                      (B) by purchase of outstanding obligations at
                    the market price.
            The purposes for which obligations of the United States
            may be issued under chapter 31 of title 31, United
            States Code, are hereby extended to authorize the
            issuance at par of special obligations exclusively to
            the Trust Fund. Such special obligations shall bear
            interest at a rate equal to the average rate of
            interest, computed as to the end of the calendar month
            next preceding the date of such issue, borne by all
            marketable interest-bearing obligations of the United
            States then forming a part of the public debt, except
            that where such average rate is not a multiple of one-
            eighth of 1 percent next lower than such average rate.
            Such special obligations shall be issued only if the
            Secretary of the Treasury determines that the purchase
            of other interest-bearing obligations of the United
            States, or of obligations guaranteed as to both
            principal and interest by the United States on original
            issue or at the market price, is not in the public
            interest.
              (2) Sale of obligation.--Any obligation acquired by
            the Trust Fund (except special obligations issued
            exclusively to the Trust Fund) may be sold by the
            Secretary of the Treasury at the market price, and such
            special obligations may be redeemed at par plus accrued
            interest.
              (3) Credits to trust fund.--The interest on, and the
            proceeds from the sale or redemption of, any
            obligations held in the Trust Fund shall be credited to
            and form a part of the Trust Fund.
              (4) Report to congress.--It shall be the duty of the
            Secretary of the Treasury to hold the Trust Fund, and
            (after consultation with the Attorney General) to
            report to the Congress each year on the financial
            condition and the results of the operations of the
            Trust Fund during the preceding fiscal year and on its
            expected condition and operations during the next
            fiscal year. Such report shall be printed as both a
            House and a Senate document of the session of the
            Congress to which the report is made.
      (k) Reimbursement of Cost of Emergency Medical Services.--
              (1) In general.--The Attorney General shall establish
            procedures for reimbursement of hospitals operated by a
            State or by a unit of local government (or corporation
            owned or controlled by the State or unit) for the
            reasonable cost of providing emergency medical services
            (as defined by the Attorney General in consultation
            with the Secretary of Health and Human Services) in the
            United States to H-2B aliens for which payment has not
            been otherwise reimbursed.
              (2) Source of funds for reimbursement.--Funds for
            reimbursement of hospitals pursuant to paragraph (1)
            shall be drawn--
                      (A) first under subsection (i)(4)(B), from
                    amounts deposited in the Trust Fund under
                    subsection (i)(2)(A)(ii) after reimbursement of
                    certain administrative expenses; and
                      (B) then under subsection (i)(3)(A), to the
                    extent that funds described in subparagraph (A)
                    are insufficient to meet valid claims, from
                    amounts deposited in the Trust Fund under
                    subsection (i)(2)(A)(i).
      (l) Miscellaneous Provisions.--
              (1) Applicability of labor laws.--Except as provided
            in paragraphs (2), (3), and (4), all Federal, State,
            and local labor laws (including laws affecting migrant
            farm workers) applicable to United States workers shall
            also apply to H-2B aliens.
              (2) Limitation of written disclosure imposed upon
            recruiters.--Any disclosure required of recruiters
            under section of 201(a) of the Migrant and Seasonal
            Agricultural Worker Protection Act (29 U.S.C. 1821(a))
            need not be given to H-2B aliens prior to the time
            their visa is issued permitted entry into the United
            States.
              (3) Exemption from fica and futa taxes.--The wages
            paid to H-2B aliens shall be excluded from wages
            subject to taxation under the Federal Unemployment Tax
            Act and under the Federal Insurance Contributions Act.
              (4) Ineligibility for certain public benefits
            programs.--
                      (A) In general.--Notwithstanding any other
                    provision of law and except as provided in
                    subparagraph (B), any alien provided status as
                    an H-2B alien shall not be eligible for any
                    Federal or State or local means-tested public
                    benefit program.
                      (B) Exceptions.--Subparagraph (A) shall not
                    apply to the following:
                              (i) Emergency medical services.--The
                            provision of emergency medical services
                            (as defined by the Attorney General in
                            consultation with the Secretary of
                            Health and Human Services).
                              (ii) Public health immunizations.--
                            Public health assistance for
                            immunizations with respect to
                            immunizable diseases and for testing
                            and treatment for communicable
                            diseases.
                              (iii) Short-term emergency disaster
                            relief.--The provision of non-cash, in-
                            kind, short-term emergency disaster
                            relief.
      (m) Consultation on Regulations.--
              (1) Regulations of the secretary.--The Secretary
            shall consult with the Secretary of Agriculture, and
            the Attorney General shall approve, all regulations
            dealing with the approval of labor condition
            attestations for H-2B aliens or enforcement of the
            requirements for employing H-2B aliens under an
            approved attestation.
              (2) Regulations of the attorney general.--The
            Attorney General shall consult with the Secretary of
            Agriculture on all regulations dealing with the
            approval of petitions for admission or extension of
            stay of H-2B aliens or the requirements for employing
            H-2B aliens or the enforcement of such requirements.
      (n) Definitions.--For the purpose of this section:
              (1) Agricultural association.--The term
            ``agricultural association'' means any nonprofit or
            cooperative association of farmers, growers, or
            ranchers incorporated or qualified under applicable
            State law, which recruits, solicits, hires, employs,
            furnishes, or transports any agricultural workers.
              (2) Agricultural employment.--The term ``agricultural
            employment'' means any service or activity included
            within the provisions of section 3(f) of the Fair Labor
            Standards Act of 1938 (29 U.S.C. 203(f)) or section
            3121(g) of the Internal Revenue Code of 1986 and the
            handling, planting, drying, packing, packaging,
            processing, freezing, or grading prior to delivery for
            storage of any agricultural or horticultural commodity
            in its unmanufactured state.
              (3) Employer.--The term ``employer'' means any person
            or entity, including any independent contractor and any
            agricultural association, that employs workers.
              (4) H-2B alien.--The term ``H-2B alien'' means an
            alien admitted to the United States or provided status
            as a nonimmigrant under section 101(a)(15)(H)(ii)(b).
              (5) Qualified state employment security agency.--The
            term ``qualified State employment security agency''
            means a State employment security agency in a State in
            which the Secretary has determined that the State
            operates a job service that actively seeks to match
            agricultural workers with jobs and participates in a
            multi-State job service program in States where
            significant supplies of farm labor exist.
              (6) Secretary.--The term ``Secretary'' means the
            Secretary of Labor.
              (7) United states worker.--The term ``United States
            worker'' means any worker, whether a United States
            citizen, a United States national, or an alien, who is
            legally permitted to work in the job opportunity within
            the United States other than aliens admitted pursuant
            to this section.
              * * * * * * *
                                 MINORITY VIEWS

        We oppose the committee's action to add authority for a new
    agricultural guestworker program to H.R. 2202, the Immigration
    in the National Interest Act of 1995. We recognize that H.R.
    2202 will have an adverse impact on certain sectors of the food
    and agriculture industries. Both proponents and opponents of a
    new guestworker program agree that H.R. 2202 will reduce the
    number of foreign workers available to the agricultural
    producers. We also understand that the current agricultural
    guestworker program is not working well for growers or for
    foreign workers. The solution of the committee, to establish an
    additional guestworker program, will decrease the number of
    jobs available to domestic workers and provide inadequate
    protection for foreign workers. A preferable solution is to
    improve the current guestworker program.
        Production of many crops is highly dependent on hand labor.
    For example, the U.S. Department of Agriculture estimates that
    89 percent of fruit production and 37 percent of vegetable
    production in this country are hand-harvested. Typically, the
    time window for harvesting these highly perishable crops is
    exact and frequently very short, sometimes lasting only five to
    seven days. The nature of the harvest work requires
    particularized skill; determining when a product is ripe for
    harvest and use of the most effective and efficient means of
    harvesting comes from experience.
        The current program to help farmers find these skilled
    workers when domestic workers are unavailable is the so-called
    ``H-2A'' program, authorized under section 101(a)(15)(H)(2)(A)
    of the Immigration and Nationality Act. It provides for the
    temporary admission of foreign agricultural workers if domestic
    workers are unavailable. This program requires an affirmative
    search by a producer for available domestic workers, and a
    determination that the admission of guestworkers will not
    adversely affect the wages and working conditions of similarly
    employed domestic workers. Employers must apply to the
    Department of Labor for certification at least 60 days in
    advance of the estimated date of need, and the final decision
    to admit H-2A workers is made by the Immigration and
    Naturalization Service. Producers using H-2A workers must
    provide to all workers approved housing (for non-commuters)
    without charge, assured employment for at least 75 percent of
    the contract period, and reimbursed transportation costs for
    every worker who completes the contract.
        Unfortunately, the H-2A program, as it is currently
    administered, is not fulfilling its promise to either growers
    or guestworkers. The certification requirements are too
    burdensome for most farmers and the guestworker protections are
    not well enforced. As a result, H-2A is not widely used by
    agricultural producers, and when it is used the allegations of
    guestworker abuse challenge its integrity. Without an adequate
    guestworker program, illegal immigrants fill the void. The
    Department of Labor estimates that 25 percent of the 1.6
    million agricultural workers are illegal aliens.
        The committee has approved an amendment to H.R. 2202 that
    will create a new guestworker program--the H-2B program. This
    new program will not require that employers show the
    unavailability of domestic workers, and it provides weaker
    worker protections than required by the H-2A program.
    Enforcement of the H-2B provisions will be complaint driven
    only.
        We are very concerned that enactment of this new program
    will encourage producers to hire foreign workers rather than
    domestic workers and will permit the living conditions of all
    farmworkers to deteriorate. At a time when we are trying to
    encourage welfare recipients to get jobs and become self-
    sufficient, it makes little sense to encourage foreign workers
    to take domestic jobs. At a time when the American people are
    urging us to reform our immigration laws, it make little sense
    to open a big new door to foreign workers. At a time when the
    current guestworker program is criticized for not adequately
    protecting guestworkers, it makes little sense to begin a new
    program that offers fewer guestworker legal protections.
        We believe that the better approach to resolving the
    problem of an inadequate supply of farmworkers is to reform the
    H-2A program so that it works more effectively for both
    producer and worker, and to support efforts to improve where
    necessary agricultural labor practices and to better match
    domestic workers with agricultural jobs so that domestic
    workers will be attracted to jobs in the agriculture sector.
    This approach obviates the need for a new guestworker program
    that will be perceived by most Americans as an open door to
    foreign workers who will not return to their home countries. It
    also reiterates the promise of worker protections for all
    farmworkers.
        We share the commitment of the majority to maintaining the
    competitiveness of our agricultural and food industries. We
    believe that this commitment is not in conflict with out
    commitment to ensure the well-being of all of our farmworkers,
    domestic and foreign. The H-2B program approved by the
    Committee on Agriculture moves in the wrong direction, and we
    oppose the committee's action.

                                       E (Kika) de la Garza,
                                       George E. Brown, Jr.,
                                       Earl F. Hilliard,
                                       Eva M. Clayton,
                                       Harold L. Volkmer,
                                       Sanford D. Bishop, Jr.,
                                       Earl Pomeroy,
                                       Sam Farr,
                                       John Baldacci.
             ADDITIONAL MINORITY VIEWS OF MR. POMEROY AND MR. FARR

        During the mark-up of H.R. 2202 by the Committee on
    Agriculture a question was presented to counsel by Mr. Latham
    regarding an amendment offered by Mr. Farr. Mr. Farr's
    amendment, which was ultimately withdrawn, would have provided
    that no employer shall employ an H-2B worker in a State unless
    the laws of that State guarantee farmworkers certain minimum
    labor standards. Mr. Latham asked counsel if this amendment
    would be subject to a point of order as an unfunded federal
    mandate. Counsel's response was that the Farr amendment would
    be an unfunded mandate on the states. Believing counsel's
    position to be incorrect, Mr. Pomeroy requested that senior
    counsel give his ruling on the question, and Mr. Latham also
    asked for the opinion of senior counsel. Senior counsel
    responded that he did not have a different view.
        We wish to include at this point in the record the opinion
    of the Congressional Research Service on this issue, an opinion
    which supports our view that the Farr amendment is not an
    unfunded mandate.

                               The Library of Congress,
                                Congressional Research Service,
                                         Washington, DC, March 8, 1996.
    To: House Committee on Agriculture. Attention: John Riley.
    From: American Law Division.
    Subject: Unfunded Mandate Reform Act Applicability to Amendment Offered
            by Mr. Farr to H.R. 2202.
        This memorandum responds to your request for a legal
    analysis of the applicability of the Unfunded Mandates Reform
    Act, P.L. 104-4 to an amendment offered by Mr. Farr to H.R.
    2202. Mr. Farr's amendment would provide that an employer could
    not employ certain categories of guest workers unless the state
    has in effect certain labor laws regarding farm workers'
    compensation, unemployment compensation, overtime pay, rights
    to organize labor unions and the right to collective bargaining
    between a labor union and an agricultural employer.
        P.L. 104-4 provides in section 101 that the term ``Federal
    intergovernmental mandate'' means ``any provision in
    legislation, statute, or regulation that (i) would impose an
    enforceable duty upon State, local, or tribal governments,
    except * * * a duty arising from participation in a voluntary
    Federal program''.
        Mr. Farr's amendment does not appear to impose ``an
    enforceable duty upon (a) state'' since the states are not
    required to enact the labor laws applicable to farm workers,
    nor is an enforcement mechanism specified in the amendment
    regarding enactment of such state laws. Thus, the amendment
    does not appear to contain a federal intergovernmental mandate
    as defined in P.L. 104-4.
        In addition, Mr. Farr's amendment does not appear to impose
    an enforceable duty upon private sector employers which would
    be recognized as a federal private sector mandate since a duty
    which arises from participation in a voluntary federal program
    is exempt from the provisions of that Act. It is our
    understanding that participation by employers in the guest
    worker program would be voluntary, so that requirements such as
    payment of overtime pay would come under the Unfunded Mandates
    Act exemption and not be considered to be an unfunded mandate
    as defined in that Act.

                           Kathleen S. Swendiman, Legislative Attorney.

        We trust that future opinions by the counsel of the
    Committee on Agriculture on this matter will reflect the
    informed view of the Congressional Research Service.
                                       Earl Pomeroy,
                                       Sam Farr.
                    ADDITIONAL MINORITY VIEWS OF MR. VOLKMER

        The Committee on Agriculture's business meeting to mark-up
    legislation to establish a new guest worker program is
    reminiscent of the mark-up of the Freedom to Farm legislation
    during which the majority followed a flawed procedure to the
    point the legislative process was abused and irresponsible
    lawmaking followed.
        I raised a similar concern regarding the handling of the
    legislation providing for a new guest worker program, entitled
    H2B. No agriculture subcommittee hearings were held on the new
    H2B-guest worker legislation before it came to the full
    committee; however the ``concept'' of such a program was
    discussed during a hearing. That is not a hearing on the bill.
    To bring this proposal to the full committee without a hearing
    and implore members that the legislation go forward or ``the
    committee will lose jurisdiction'' or, ``the train is leaving
    the station'' or, ``it's the only game in town'' begs the
    question of where the committee has been on this issue for the
    last year and are not legitimate reasons to abandon established
    committee procedure in the development of good public policy or
    law that citizens will respect and follow. For the most part,
    legislation hastily made without public scrutiny, like this
    proposed H2B Program, is rife with loopholes and invites
    lawbreaking by the affected parties. H2B will not stem the flow
    of immigrants, but will increase the flood of immigrants.
        Frankly, this proposal is cross-wise with current efforts
    to protect American farmworkers' jobs and to reform welfare.
    What rational person seeking to reform welfare would argue that
    we close our borders, build fences to keep out illegals to
    protect jobs for Americans and for those who will be removed
    from welfare and required to work, and legal aliens already
    here and available for work, and at the same time propose a new
    program to bring in more foreign workers. Plain and simple,
    this is a program to create a surplus of labor.
        There is no shortage of labor in America, the fact is there
    is a surplus and this program insures an even larger surplus
    which will be accompanied by downward pressure on wages,
    benefits and working conditions for Americans and legal aliens.
    In my mind the shortage in this program is Justice for American
    workers, including those on welfare who are hoping for a better
    life through finding a job and working, and those legal aliens
    who are anxious and available to work.
        The benefit of this program accrues solely to large
    agribusiness firms who, due to an over-supply of farmworkers,
    will be relieved of pressure from the free-market place of laws
    of supply and demand to offer farmworkers better pay, longer
    employment and more meaningful benefits.
        The process has been flawed and the purpose of the H2B
    Program is questionable. Public hearings on the effect of this
    proposal should be held in order to correct the deficiencies of
    the proposal before it moves forward.

                                                 Harold L. Volkmer, MC.